UN statement on illegal intercountry adoptions lacks nuance

On September 29, 2022, the Committee on the Rights of the Child, the Committee on Enforced Disappearances, the Special Rapporteur on the promotion of truth, justice and reparation, the Special Rapporteur on the sale and sexual exploitation of children, the Special Rapporteur on trafficking in persons, especially women and children and the Working Group on enforced or involuntary disappearances have issued a joint statement (in English only) on illegal international adoptions.

This declaration aims to “promote a human rights-based and gender-sensitive approach to preventing and eradicating illegal intercountry adoptions by identifying the rights that are violated by illegal intercountry adoptions and clarifying the obligations of States in this regard. regard, under international human rights law .

This text is undoubtedly welcome at a time when many host countries are considering how to respond to the consequences of past mistakes. The right of victims to know the truth and to obtain the assistance necessary to find their origins is, for example, clearly expressed there. However, the UN authorities have included in their approach other rights and different concepts which, in my opinion, would have deserved either a more detailed lexical study or a development of their ins and outs.

In general, this text presents the risk of a certain confusion insofar as it does not make sufficient distinctions between the bad practices of the past and the standards of human rights whose application is necessary and recognized today. .

On the qualification of the theme first of all: speaking of “illegal international adoptions” certainly makes it possible to grasp the subject of the declaration, but the use of the word “illegal” is not appropriate. In my opinion, there is a bias in understanding between, on the one hand, what is considered today as an "illegal adoption", and, on the other hand, the analysis of the practices which may have affected procedures in the past. In a current reading, there is no doubt that "adoptions that are the result of crimes such as abduction, sale or trafficking of a child, fraud in declaration of adoptability, falsification of official documents or coercion, as well as any activity or practice such as the absence of the appropriate consent of the biological parents, improper material profits for the benefit of intermediaries and the corruption associated therewith, constitute illegal adoptions and must be prohibited, criminalized and punished as such ”.

On the other hand, the legal qualification of the different types of acts that may have affected an international adoption procedure that took place several years ago is more complex, sometimes even impossible. A purely legal analysis implies taking into account both the national law of the country of origin of the child and that of the host country, domicile of the candidates for adoption, and of the temporal dimension which determines which texts precisely were in force at the time of the commission of the incriminated facts. Added to this are the rules of private international law and criminal law governing questions of forum and applicable law, according to complex legal procedures, which are also linked to the provisions of the national law of each State concerned. Finally, it is also a matter of taking into account the specific international treaties that may, depending on the type of act in question, find application, taking into account, however, their territorial and temporal applicability. In other words, one cannot speak of illegal adoption if there is no law. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many irregularities noted today are due to omissions, steps that were not taken or missing documents. depending on the type of acts in question, find application, taking into account however their territorial and temporal applicability. In other words, one cannot speak of illegal adoption if there is no law. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many irregularities noted today are due to omissions, steps that were not taken or missing documents. depending on the type of acts in question, find application, taking into account however their territorial and temporal applicability. In other words, one cannot speak of illegal adoption if there is no law. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many irregularities noted today are due to omissions, steps that were not taken or missing documents. taking into account, however, their territorial and temporal applicability. In other words, one cannot speak of illegal adoption if there is no law. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many irregularities noted today are due to omissions, steps that were not taken or missing documents. taking into account, however, their territorial and temporal applicability. In other words, one cannot speak of illegal adoption if there is no law. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many irregularities noted today are due to omissions, steps that were not taken or missing documents. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many of the irregularities noted today are due to omissions, steps that were not taken or missing documents. There are many documented cases denounced as early as the 1980s where clearly illegal acts were denounced, but the legal corpus which has long prevailed in the countries of origin and in the host countries was in general largely insufficient to make it possible to determine today if such or such acts were illegal at such time, in such country. Experience also shows that many irregularities noted today are due to omissions, steps that were not taken or missing documents.

These are not mere legal details: this potential lack of distinction between what must be respected today and what was not respected yesterday biases the subsequent reasoning in terms of liability and reparation.

The signatory UN bodies stress, for example, that "States must provide a remedy to victims of illegal international adoptions by establishing specific procedures for the review and, if necessary, the annulment of the adoption, placement or guardianship arising from an enforced disappearance or any illegal act, as well as prompt action to re-establish the true identity of the adoptee concerned, taking into account the best interests of the child without prejudice to the right to nationality”.. Apart from the fact that the annulment of an adoption can entail consequences that go well beyond the right to identity and nationality of the adopted person (inheritance rights, maintenance obligations, etc.), and that 'there is no mention of the adoptive family which is just as concerned, this paragraph is in my opinion practically inapplicable, in view in particular of the virtual impossibility of determining the illegal nature of an adoption pronounced in another country, to a another time, under another law.

But on a personal level, it was the references to “genocide” and “crimes against humanity” that struck me the most. Paragraph 4 states “Under certain conditions provided for by international law, unlawful international adoptions may constitute serious crimes such as genocide or crimes against humanity” . Admittedly, Article 2 lit e of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide provides (in this unclear wording): "genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: forcible transfer of children from the group to another group” . According toLondon Charter , a crime against humanity is defined as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during war, or persecution on political, racial or religious grounds, when such acts or persecution, whether or not they constituted a violation of the domestic law of the country where they were perpetrated, were committed as a result of any crime within the jurisdiction of the Court, or in connection with this crime” .

I had already expressed my doubts when the Committee on Enforced Disappearances took up the issue of adoptions between Switzerland and Sri Lanka, on the one hand because the conditions of applicability of the Convention for the Protection of All Persons Against Enforced Disappearances also seemed to me to be debatable here, but above all because this shift from a necessary recognition of past bad practices to a qualification as a crime against human rights is, in my opinion, extremely delicate.

Talking about enforced disappearance, crimes against humanity or genocide conjures up images of the worst moments in the history of humanity. These dark pages have seen massive human rights violations and affected millions of people. If, theoretically, certain practices of international adoption, in certain countries of origin at certain times, can come close to the aforementioned legal definitions, it seems extremely difficult to be able to establish that international adoption was indeed an instrument used deliberate way to destroy a specific social group. But it is once again a question of making the difference between the past and the present: international adoption has for a long time been perceived as a means of coming to the aid of a population of children in distress, especially when she suffered different forms of persecution. It is dangerous to cast doubt of such a nature on the basis of a new reading of the problem. On the other hand, it is certain that this same reasoning must henceforth form part of the analysis of current situations, for example when we observe the practices ofmovement of child populations between Ukraine and Russia .

Creating a semantic link between international adoption and acts of genocide and crimes against humanity risks giving the wrong message; the exception is not the rule. These words are so powerful that they are the ones that are likely to be remembered by the audience. This statement may thus have traumatic implications for the adoptee community and their families. Is it useful to recall the complexity of the history of international adoption and the extreme diversity of individual situations? To recall that a very large number of international adoptions have evolved in a positive way for the persons concerned, who do not all seek to know the conditions under which they were adopted?

With all due respect to the members of the signatory UN bodies, it seems to me essential to address these questions in a more nuanced, more documented way, taking into account a community as a whole.