Irregular adoptions: Committee on Enforced Disappearances takes position

On 11 May 2021 the UN Committee on Enforced Disappearances has made its observations following consideration of the periodic report submitted by Switzerland. The International Convention for the Protection of All Persons from Enforced Disappearance was ratified by Switzerland in 2016, and entered into force on January 1, 2017.

The Committee took up the file of irregular adoptions between Switzerland and Sri Lanka thanks to the association Back to the Roots which, according to my understanding of the information posted on its site , was invited to take a position during this session. It is gratifying to note that the representatives of adoptees have access to the highest bodies of the United Nations, and that their voice can be heard on issues that have been ignored for too long. However, the fact of having approached the Committee in charge of enforced disappearances again raises many questions, and, in my opinion, risks posing more problems than it will perhaps solve.

According to article 2 of the Convention, enforced disappearance means the arrest, detention, kidnapping or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by the denial of the recognition of the deprivation of liberty or the concealment of the fate of the disappeared person or of the place where he is found, removing him from the protection of the law ” [1]. This definition makes it possible to imagine the cases to which the Convention refers: a government or its representatives kidnap and make disappear people, in a context of political crisis, war or dictatorship for example. It is therefore a human rights instrument aimed at protecting citizens against this specific type of persecution.

In its observations , the Committee makes the following reasoning to justify its intervention in the field of irregular international adoptions: it underlines that the [Swiss] delegation recognized that, in certain cases, illegal adoptions could be the result of an enforced disappearance. or the removal of children subjected to enforced disappearance or whose father, mother or legal representative was subjected to enforced disappearance, or of children born during the captivity of their mother subjected to enforced disappearance. Let us recall that in the Sri Lankan context, the civil war which spread from 1983 to 2009, involved a significant number of enforced disappearances ( 20,000 people according to the highest estimates).). It is therefore indeed possible that among the victims, some had children who, in one way or another, were ultimately adopted.

However, and without wishing to be disrespectful to the Committee, this position is in my opinion worrying, not to say counterproductive, in more than one respect. First of all, I have the feeling that the case of intercountry adoptions hardly meets the conditions set by the conventional legal framework. While there is certainly a possibility that children were indirectly victims of disappearances, is it plausible to imagine that a State deliberately carried out the type of acts described above with the aim of adopting children for adoption? the international? In other words, is there a causal link between the disappearance of the adult and the adoption of the child? We can doubt it. That the political context of the time, the civil war, and the economic crisis have offered individuals opportunities for enrichment through the organization of abusive and illegal intercountry adoption procedures, no doubt. From there to considering the establishment of a real procedure organized by the State for this purpose, it seems unlikely. Admittedly, this type of action has indeed been implemented in Spain and Argentina, resulting in the kidnapping of the children of opponents of the regime and their subsequent adoption, but are these situations really comparable?

The Committee then calls on Switzerland to “ conduct thorough and impartial investigations” and “ guarantee the right to reparation”. Without going any further in the analysis, I think that here too the Committee is in the wrong fight: how to conduct these inquiries in a foreign country, concerning a period of civil war? Will it then be necessary to take them to all the other countries of origin which have gone through crises and which simultaneously carried out international adoptions? Then, what repair are we talking about? On what basis, and according to what criteria?

Personally, I consider this intervention inappropriate, because it only adds confusion to an already complex file. The Committee was certainly fully entitled to raise certain questions, but its recommendations do not go in the direction of a comprehensive response to the question of illegal adoptions, and even less of a humanist approach to the problems to be addressed. On the contrary, they run the risk of freezing positions, of making the host countries suspicious, which will have to work to provide answers to those adopted in search of their origins, and of casting a veil of extreme violence over the entire community of international adoption. In my opinion, this is very regrettable.

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