Allegations of forced sterilisation in U.S. private migrant detention centre

Allegations of forced sterilisation in U.S. private migrant detention centre: the alarming privatization of migration management

An update has been added at the end of the article

Last September, a whistleblower NGO report[1] alleges that a large number of migrant women held at the Irwin detention center (Georgia, U.S.), a privately-run facility, received sterilisations by hysterectomies that they did not want and which were not medically necessary.[2] Even though no figures have yet been collected, certain Irwin nurses testified a worrying increase of sterilisation. This striking denunciation is part of a broader complain by the advocacy group Project South, that has been denouncing the appalling conditions of detention in Stewart and Irwin centers for the past ten years.[3]

Despite NGOs procedure before the Inter-American Commission on Human Rights[4] and referral to different UN Special Rapporteurs[5] concerning the suspicious death of an immigrants and the alarming detention conditions in Irwin, the American authorities seem to have largely remained inattentive to the ongoing problem. Even if the U.S. House of Representative passed a resolution[6] this October 2nd to condemn the medical abuse at Irwin, nothing concrete has yet been undertaken. Quick response regarding migrant detention conditions is even more necessary in the present COVID-19 crisis, especially access to health care.

The current situation reflects a growing lack of control, responsibility and accountability of private companies that are involved in migration management. Traditionally, immigration control or detention were activities exclusively run by States. Nonetheless, since the 1990’s, a new phenomenon led to the increasing presence of non-state actors in these functions, particularly private companies.[7] Indeed, mainly for financial reasons, States are currently contracting with private companies to fulfil even more missions: to deal with forced removals, to handle detention centres, to run border control, to manage visa applications or to provide resettlement programs for refugees. The United States, the United Kingdom along with Australia were the first countries to engage in this kind of practice, hence, the fall back on private society companies in migration management widespread. Today, all detention centres in Australia are managed by private companies for instance. This movement is no longer limited to Anglo-Saxon countries.[8]

Issues of forced sterilisation at the Irwin centre are unfortunately not an isolated case of violence. Many studies and reports[9] show that in each of the above examples of activities carried out by private companies, the rights of migrants and refugees have been diminished. Thus, it even ended up with abuses such as putting migrant detainees into captive labour for only 1£ per hour in the UK[10], or the mafia management of a reception centre in Italy for more than a decade, which embezzle public money regardless of the poor services provided to migrants.[11]

Few private compagnies dominate the market[12] and promote their own business models, not the protection of fundamental human rights. It is not uncommon for these private industries to establish powerful lobbies in legislative processes or election campaigns[13] that promote strict enforcement and control of immigration for economic interests. According to a survey of the IRIN agency[14], the privatisation of migrant management has increased the criminalisation of migration worldwide. However, the very detention of asylum seekers may constitute a violation of international refugee law.[15] The coincide of private companies running prisons and immigration detention centres has led to situation were guards fail to recognise the difference between punitive and administrative detention.[16]

Although the growing scale of private involvement towards migration management and violations of rights attached to them, a small number of prosecutions are launched and lead to even fewer convictions. This can be explained in particular by legal barriers, the lack of access to privately run facilities and the absence of monitoring and complaints mechanisms. Furthermore, this privatisation blurs the responsibility between security companies and governments. Various human rights institutions have emphasised that, in the process of privatisation, continued respect for human rights must be ensured. As noted by the European Court of Human Rights in Costello-Roberts v. the United Kingdom: ‘the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals’.[17] These cases of responsibility are typically related to negligence and violations of the actors duty of care, and seldom involves any explicit discussion of international human rights or refugee law. Privatization of migration management has given rise to various ‘blame games’, as both corporations and governments have been keen to distance themselves from taking responsibility in such situations. This is made possible by the inefficient legal framework, not suitable to these hybrid relationships, which must be reformed.

Several attempts have been made to establish obligations on corporations to respect human rights, but they all remain voluntary codes of conduct or soft law accountability mechanisms[18] that have so far not proven particularly effective. Since forced sterilisation is only one example among human rights violations, new mechanisms to monitor and, if necessary, condemn private companies in charge of migration management are required. This issue is even more relevant since these same societies are increasingly solicited by States for their penitentiary management, an area in which the same problems of violations occurred.[19]

Par Clémentine Elfasci, Délia Hammar, Camille Houtteman, Arthur Romano et Agathe Schramm

REFERENCES

The validity of the hyperlinks was reviewed on November 26th, 2020.

[1] Project South, “Lack of medical care, unsafe work practices, and absence of adequate protection against COVID-19 for detained immigrants and employees alike at the Irwin County Detention Center”, 14/09/2020 (accessible here) [2] The Guardian, “Ice hysterectomy allegations in line with US’s long and racist history of eugenics”, Moira Donegan, 17/09/2020 (accessible here) [3] SLATE, “Why did it take a sterilization scandal to retrigger our outrage over ICE?”, Aviva Shen, 18/09/2020 (accessible here) [4] The NGOs Project South, Georgia Detention Watch and Detention Watch Network spearhead this action, helped by the Transnational Legal Clinic of the University of Pennsylvania Law School. See Project South, “Human Rights groups seek hearing at the Inter-American Commission on Human Rights”, 13/10/2017 (accessible here); see the Request for Thematic Hearing During 166th Extraordinary Period of Sessions of the Inter-American Commission on Human Rights Addressing Violations of International Law within U.S. Immigration Detention Policies and at Detention Centers in the U.S. State of Georgia, 4/10/2017 (accessible here) [5] The NGO Project South spearhead these communications, helped by Transnational Legal Clinic of the University of Pennsylvania Law School. Communications were addressed to different Special Rapporteurs: on the Rights of Migrants, on Torture and Other Inhuman or degrading Treatment or punishment, on Contemporary Forms of Slavery Including its Cause and its Consequences, on Contemporary Forms of Racism Racial discrimination Xenophobia and Related Intolerance, on Freedom of Religion or Belied, on the Promotion and Protection of the Right to freedom of Opinion and Expression. Claim were also introduced to the working group on Detention and the one on the Use of Mercenaries as Means of Violating Human Rights and Impending the Exercise of the Right of People to Self-Determination. See the Project South, “Human Rights call upon the United Nations for an Investigation into Rights Violations at U.S. Immigration Detention Facilities”, 15/05/2018 (accessible here); see the communication addressed to the Special Rapporteurs, 15/05/2018 (accessible here) [6] The October, 2nd, the U.S. House of Representative passed resolution that condemn the medical abuse at Irwin call on the Department of Homeland Security to pause the deportation of anyone who experience any medical procedure, to hold the individuals involved in the procedures accountable and to comply with all related investigations into the detention centers. See H.RES.1153- Condemning unwanted, unnecessary medical procedures on individuals without their full, informed consent, 116th Congress, 02/10/2020 (accessible here) [7] Gammeltoft-Hansen, “Private Actor Involvement in Migration Management”, (pp. 527-555). In J. Schechinger & A. Nollkaemper & I. Plakokefalos, “The Practice of Shared Responsibility in International Law”, Cambridge University Press 2017 [8] The European Union as well as Nordic countries, Germany, Austria or Switzerland privatise services for migrants and refugees. For more information see Public Services International Research Unit “Privatisation of Migration & refugee services & other forms of State Disengagement”, Jane Lethbridge, March 2017 (accessible here) [9] See for instance; Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, A/HRC/35/25/Add.3 (accessible here) Amnesty International “Punishement not protection Australia’s treatment of refugees and asylum seekers in Papua New Guinea, 2018 (accessible here) ; Global Detention Project “The privatization of immigration detention: towards a global view”, Michael Flynn & Cecilia Cannon, September 2009 (accessible here) ; N. Rodley, ‘Foreword’, in A. Coyle, A. Campbell, and R. Neufield, “Capitalist Punishment: Prison Privatization and Human Rights” (London: Clarity Press, 2003) [10] In the UK, while detained migrants are not authorized to work, a legal derogation allows them to be direct as employees for day-to-day tasks, such as cleaning and catering. However, detainees are not paid the minimum wage for their work and perceived between 1 and 1.25 pounds per hour. This is six times less than the hourly rate paid outside detention centres for this type of work. In 2014, an investigation showed that the exploitation of detainees in the centres saved the companies 3 million pounds per year. Information from Migreurop “Migrant detention in the European Union: a thriving business”, Lydie Arbogast, July 2016, p53 (accessible here) [11] INFO MIGRANTS, Corruption and migration in Italy : “Did you know you can make more money with immigrants than with drugs?”, 05/09/2019 (accessible here) ; BFM TV, Italie: coup de filet contre des mafieux exploitant l’accueil de migrants, 15/05/2017 (accessible here) [12] See for instance GEO Group, CCA, G4S, SERCO… [13] See the CLC website, “Private prison company GEO group’s Pay-to-play” (accessible here). According to information reported by the Center for International Policy, in the mid-2000s the GEO group joined various government administrations in the field of Justice and Internal Security. The aim was to use its influence to obtain an amendment to the Immigration Act to increase the arrest and detention of undocumented foreigners. Campaign Legal Centre highlighted the controversy over a six-figure donation by the private prison management company GEO to Donald Trump’s campaign. Shortly after Trump took office, his administration awarded GEO a $110 million federal contract over ten years. [14]Siegfried K., “Private security firms prosper as more migrants detained”, IRIN, 12/03/2014, seen in the Migreurop “Migrant detention in the European Union: a thriving business”, Lydie Arbogast, July 2016 (accessible here) [15] Article 31 of the 1951 Refugee Convention, obliges states not to penalise refugees for irregular access to their territory and was specifically inserted to recognise that refugees may occasionally have an overriding need to seek entry, even under false pretences or not in possession of proper documentation. [16] Supra note n° 7, Gammeltoft-Hansen, p 536 [17] Costello-Roberts v. the United Kingdom, App. No. 13134/87 (ECtHR, 25 March 1993), para. 27. [18] See for instance the OECD Guidelines for Multinational Enterprises of 1976 (accessible here), the UN Global Compact of 2000, the Montreux Document of 2008 (accessible here), the UN Guiding principles on Business and Human Rights of 2011 (accessible here) [19] On this subject see for example the work of the investigate journalist Ruth Hopkins through her book The Misery Merchants – Life and Death in a private South African Prison, February 2020, or through the documentary of Ilse and Femke van Velzen Prison for Profit, which was presented in the Geneva International Film Festival and Forum on March 2020 (accessible here).

UPDATE

On October 20, the Inter-American Commission of Human Rights (IACHR) expressed its grave concern over this complaint through a press release.[1]

First, the IACHR lists the different violations undergone by female migrants in the Irwin detention center according to the complaint and asks the United States to react duly to its international human rights law obligations. The IACHR considers that the facts described in the complaint would constitute a panel of violations.[2] Therefore, the IACHR “urges the state to eradicate such practices and to investigate, prosecute, and sanction those responsible for them”[3] and asks for effective remedies given to the victims. States are indeed under the obligation to respect the human rights; to protect them; and to make them effective which include both enquiries and sanctions against the perpetrators but also access to justice and effective remedies for the victims. This statement is consistent with the IACHR position’s that “when the State has outsourced prison health care to private companies or agencies (…) it remains responsible for the adequacy of such care”.[4]

Secondly, the IACHR reaction’s is particularly striking concerning its analysis of the intersectional causes of the violations identified. Gender, migrant status, race and national origin are intersecting factors that all played a role in the mechanism of violation observed. The role of the gender factor is quite clear as the Court already ruled that sexual and reproductive rights have specific meanings and expanses towards women in the IV v. the State of Bolivia case.[5] It is consistent with the United Nations Committee against Torture claiming that the risk of torture suffered by women are chiefly determined by gender and other characteristics such as race and migrant status.[6] Those intersectional factors explain why the IACHR feels the need to recall to the state “of its international obligation to protect the human rights of all persons subject to its jurisdiction”.[7] The idea conveyed is that those violations should be addressed at a general level improving healthcare and consent procedures in migrant detention centers, with particular precautions concerning sexual and reproductive rights when it comes to women health.

As a matter of fact and finally, the IACHR also asks the state to come up with solutions concerning the general lack of appropriate health care on migrants detention centers especially as the international pandemic of COVID-19 is occurring.

The inter-dependance of human rights and the complexity of intersectional discriminations and causes of violations are therefore underlined in order to promote a general response. It is yet to see if the United States will implement it.

Adeline Auffret

[1] OAS press release, “IACHR Expresses Its Concern Over Reports of Sterilizations and Surgical Interventions Without Consent in Migrant Detention Centers in the United States”, October 30, 2020 (accessible here). [2] American Convention on Human Rights, 1969 : the right to personal security, article 7§1 ; the right from arbitrary or unlawful interference with privacy, family, article 11§2 ; the right of the preservation of the health of migrant women and on the reproductive and sexual rights of the women concerned. [3] OAS press release, “IACHR Expresses Its Concern Over Reports of Sterilizations and Surgical Interventions Without Consent in Migrant Detention Centers in the United States”, October 30, 2020 (accessible here). [4] IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, December 31, 2011, §531 (accessible here). [5] Inter-American Court of Human Rights, I.V. v. Bolivia, November 30, 2016 (accessible here). [6] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, February 1, 2013, para. 48. [7] OAS press release, “IACHR Expresses Its Concern Over Reports of Sterilizations and Surgical Interventions Without Consent in Migrant Detention Centers in the United States”, October 30, 2020 (accessible here).