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Read the Executive Summary.

Executive Summary

From the inception more than 17 years ago of the Guantánamo Bay detention center located on the U.S. naval base in Guantánamo Bay, Cuba, senior detention facility personnel have consistently lauded the quality of medical care provided to detainees there. For example, in 2005, Joint Task Force (JTF) Guantánamo’s then-commander said the care was “as good as or better than anything we would offer our own soldiers, sailors, airmen or Marines.” In 2011, a Navy nurse and then deputy command surgeon for JTF Guantánamo made a similar claim: “The standard of care here is the best possible standard of care (the detainees) could get.” In late 2017, Guantánamo’s senior medical officer again echoed those sentiments: “Detainees receive timely, compassionate, quality healthcare…[which is]…comparable to that afforded our active duty service members on island.”

There have been many more such assertions in the intervening years and since. Following an in-depth review of publicly available information related to medical care at Guantánamo—both past and present—as well as consultations with independent civilian medical experts and detainees’ lawyers, the Center for Victims of Torture and Physicians for Human Rights have determined that none of those assertions are accurate.

To the contrary, notwithstanding Guantánamo’s general inaccessibility to independent civilian medical professionals, over the years a handful of them have managed to access detainees, review medical records, and interface with Guantánamo’s medical care system to a degree sufficient to document a host of systemic and longstanding deficiencies in care. These include:

• Medical needs are subordinated to security functions. For example, prosecutors in a military commission case told the judge explicitly that the commander of Guantánamo’s detention operations is free to disregard recommendations of Guantánamo’s senior medical officer.
• Detainees’ medical records are devoid of physical and psychological trauma histories. This is largely a function of medical professionals’ inability or unwillingness to ask detainees about torture or other traumatic experiences during their time in the CIA’s rendition, detention, and interrogation program, or otherwise with respect to interrogations by U.S. forces—which has led to misdiagnoses and improper treatment.
• In large part due to a history of medical complicity in torture, many detainees distrust military medical professionals which has led repeatedly to detainees reasonably refusing care that they need.
• Guantánamo officials withhold from detainees their own medical records, including through improper classification.
• Both expertise and equipment are increasingly insufficient to address detainees’ health needs. For example, a military cardiologist concluded that an obese detainee required testing for coronary artery disease, but that Guantánamo did not have the “means to test” him, and so the testing was not performed. With regard to mental health, effective torture rehabilitation services are not, and cannot be made, available at Guantánamo. 
• Detainees have been subjected to neglect. One detainee urgently required surgery for a condition he disclosed to Guantánamo medical personnel in 2007—and they diagnosed independently in 2010—but he did not receive surgery until 2018 and appears permanently damaged as a result.
• Military medical professionals rotate rapidly in and out of Guantánamo, which has caused discontinuity of care. For example, one detainee recently had three primary care physicians in the course of three months.
• Detainees’ access to medical care and, in some cases, their exposure to medical harm, turn substantially on their involvement in litigation. For example, it appears extremely difficult, if not impossible, for detainees who are not in active litigation to access independent civilian medical professionals, and for those who are to address a medical need that is not related to the litigation. For detainees charged before the military commissions, prosecution interests have superseded medical interests, as with a detainee who was forced to attend court proceedings on a gurney writhing in pain while recovering from surgery. 

These deficiencies are exacerbated by—and in some cases a direct result of—the damage that the men have endured, and continue to endure, from torture and prolonged indefinite detention. 

It is long past time that the medical care deficiencies this report describes were acknowledged and addressed. Systemic change is necessary; these are not problems that well-intentioned military medical professionals—of which no doubt there are many, working now in an untenable environment—can resolve absent structural, operational, and cultural reform. Nor, in many respects, are they problems that can be fully resolved as long as the detention facility remains open. 

Guantánamo should be closed. Unless and until that happens, the Center for Victims of Torture and Physicians for Human Rights call upon Congress, the Executive Branch, and the Judiciary to adopt a series of recommendations aimed at meaningfully improving the status quo. These include, but are not limited to: lifting the legal ban on transferring detainees to the United States and mandating such transfers when detainees present with medical conditions that cannot be adequately evaluated and treated at Guantánamo; ensuring detainees have timely access to all of their medical records upon request while otherwise maintaining confidentiality of those records (especially with regard to access by prosecutors); and allowing meaningful and regular access to Guantánamo by civilian medical experts, including permitting such experts to evaluate detainees in an appropriate setting. 

If the United States declines to take the steps this report recommends, complex medical conditions that cannot be managed at Guantánamo should be expected to accelerate in frequency and escalate in severity.

Introduction

The Guantánamo Bay detention center, located on the U.S. naval base in Guantánamo Bay, Cuba, is now in its eighteenth year. Forty Muslim men still languish there, 31 of whom have never been charged with a crime. [1] Five detainees have long been cleared for transfer by consensus of the Executive Branch’s national security apparatus, which determined that the men pose no meaningful threat, if any at all, to the United States. Many of the remaining detainees are torture survivors or victims of similarly significant trauma. All of them are either suffering from or at high risk of the additional profound physical and psychological harm associated with prolonged indefinite detention, a form of cruel, inhuman, and degrading treatment. As the men age under these conditions, they are increasingly presenting with complex medical needs.

Indeed, on April 27, 2019, then Joint Task Force-Guantánamo (JTF-GTMO) Commander Rear Admiral John C. Ring expressed concern to a gathering of reporters about Guantánamo’s ability to provide medical care to the remaining detainees as time passes and with seemingly no prospect of their release: 

Unless America’s policy changes, at some point we’ll be doing some sort of end of life care here…. A lot of my guys are prediabetic…. Am I going to need dialysis down here? I don’t know. Someone’s got to tell me that. Are we going to do complex cancer care down here? I don’t know. Someone’s got to tell me that. [2]

His statements echo those of General John F. Kelly, United States Marine Corps, former Commanding General United States Southern Command, who testified six years prior, before the House Armed Services Committee, to a “major challenge” facing the United States at Guantánamo: “complex issues related to future medical care of detainees.” [3] General Kelly explained that “the medical issues of the aging detainee population are increasing in scope and complexity,” and that “aging detainees could require specialized treatment for issues such as heart attack, stroke, kidney failure, or even cancer.” Guantánamo did not have the “specialists and equipment” necessary for that level of care, he warned. [4]

Both Admiral Ring and General Kelly are correct: Guantánamo is unprepared to address the medical needs of an aging population, especially given current U.S. laws that prohibit transferring any of the men to the United States for any reason. But the medical care problems at Guantánamo are far more serious and run much deeper.

Although independent civilian medical experts have had limited direct access to detainees, their experiences interfacing with Guantánamo’s medical care system—coupled with review of available medical records and information provided by detainees’ legal counsel—have been sufficient for them to document multiple significant deficiencies that cut across the detainee population.

Many of the deficiencies are structural, like the subordination, whether through policy or practice, of detainees’ medical needs to security functions. Or the lack of expertise and equipment necessary to provide adequate care for medical conditions that are inevitable in a population of torture survivors [5] who have been detained for almost two decades in a facility synonymous with torture and who are suffering the profound health consequences of both. Or the frequent rotation of medical personnel on and off the island which makes continuity of care all but impossible. Or the deeply troubling double standard by which detainees cannot meaningfully access their own medical records, while prosecutors in military commission cases can. 

Some of the medical care deficiencies amount to substandard care on their face. For example, there appears to be a widespread practice of medical professionals not asking detainees about (or at least not documenting) torture and abuse they suffered at CIA black site prisons, where some were held captive for years following the September 11, 2001 attacks. This failure has resulted in an absence of trauma histories in detainees’ medical records and, in turn, has led to inaccurate diagnoses and improper treatment.

Some detainees have reported positive experiences with medical care at Guantánamo, including constructive relationships with nurses and doctors and in some cases medical staff responding quickly to life-threatening illness.[6] Moreover, it is clear that many military medical professionals are doing their best under nearly impossible circumstances. But in neither case does that diminish the seriousness of the problems identified in this report.

The case that perhaps best illustrates the state of medical care at Guantánamo is that of Abd al-Hadi al-Iraqi (aka Nashwan al-Tamir), who was captured in 2006, rendered to a CIA black site, then transferred to Guantánamo the following year. On September 5, 2018, Mr. al-Tamir collapsed incontinent in his cell from a degenerative spinal condition—one about which he had told Guantánamo’s medical personnel more than 10 years earlier, they had independently diagnosed at Guantánamo in 2010, and that outside medical experts concluded had obviously required urgent surgical intervention years earlier. To avoid paralysis, a team of specialists from the mainland had to fly to Guantánamo on a moment’s notice and perform emergency surgery. Four additional surgeries later—all performed at Guantánamo, but again by off-island specialists—Mr. al-Tamir’s spinal condition is still not resolved, he continues to suffer, and he may require additional surgery.

Nevertheless, the government has pushed forward with Mr. al-Tamir’s prosecution in the military commissions, which has required him to attend court on a gurney, take pain medication during legal proceedings, and sleep in the courtroom when the predictable effects of that medication set in. Because of Mr. al-Tamir’s fragile state, Guantánamo’s senior medical officer repeatedly recommended that Mr. al-Tamir not be forcibly extracted from his cell to attend court proceedings (or otherwise). Prosecutors assured the judge in Mr. al-Tamir’s case that he did not need to issue an order to the same effect because Guantánamo’s non-medical staff would respect the recommendation. They were wrong. At the next hearing, prosecutors conceded that, in fact, Guantánamo’s non-medical commanders “are not bound by the [senior medical officer’s] opinions nor will they defer to them in every instance.” [7]

The medical care situation at Guantánamo is not sustainable and should be expected to worsen rapidly over time as the impacts of both torture and indefinite detention exacerbate medical complications otherwise associated with aging. This report concludes with a series of recommendations that would at least mitigate medical care deficiencies and reduce the likelihood of unmanageable medical crises until Guantánamo—as it should be—is finally closed.

Methodology and Limitations

This report by the Center for Victims of Torture and Physicians for Human Rights is based on an analysis of public source materials documenting significant deficiencies in the provision of medical care to detainees at Guantánamo. The materials include litigation filings in military commission cases and federal court habeas corpus proceedings, filings before the Guantánamo Periodic Review Boards, press reports, and other publicly available sources. The report also draws on 15 years of both organizations’ experience examining the CIA’s former rendition, detention, and interrogation program, the establishment and spread of torture and cruel, inhuman, and degrading treatment in the military in the aftermath of the September 11, 2001 attacks, and the role of U.S. health professionals in detainee torture and abuse.

To supplement and contextualize the public source materials, the report’s authors consulted with independent civilian medical experts—several of whom have significant experience conducting medical and psychological evaluations of Guantánamo detainees, reviewing their available medical records, and interfacing with Guantánamo’s medical care system—as well as with counsel for detainees.

The report does not claim to provide a comprehensive examination of medical care at Guantánamo, nor could it. Many detainees themselves are unable to access their own medical records, or, in the absence of active litigation (and sometimes even then), to secure a medical evaluation by a civilian health professional. Independent civilian health professionals have had, and continue to have, limited access to Guantánamo. Some detainees refuse medical care due to concern over access to their records by prosecutors in military commission cases. And, according to detainees’ counsel, significant portions of medical records the government has produced are classified.

Standard of Care

From the day Guantánamo opened, the United States has claimed that neither longstanding international law nor well-settled domestic law applies there, a position widely condemned by the international community. U.S. courts have firmly resolved some basic legal questions, like affirming detainees’ right to challenge the legality of their detention through habeas corpus petitions in federal court. [8] Other foundational decisions are becoming more unstable over time, such as the authority to detain men at Guantánamo at all, which the Supreme Court said could “unravel” if “the practical circumstances” of the war against al-Qaida and the Taliban became “unlike those of the conflicts that informed the development of the law of war.” [9] Still other fundamental legal questions have yet to be decided, including whether the Constitution applies at Guantánamo. [10]

This report does not engage that legal debate with respect to medical care obligations because, even by the standards that the United States has embraced, the deficiencies the report describes constitute clear violations. 

Specifically, as noted at the outset, military officials have claimed repeatedly that detainees receive medical care equivalent to that which Guantánamo’s Joint Medical Group—the entity responsible for medical care at the naval base—provides to service members. [11] That position is reflected in U.S. Army Regulation 190–8, which implements the Geneva Conventions and “provides policy, procedures, and responsibilities for the administration, treatment, employment, and compensation of enemy prisoners of war … retained personnel … civilian internees … and other detainees in the custody of U.S. Armed Forces.”[12] For example, the regulation states that prisoners of war and retained personnel “will be quartered under conditions as favorable as those for the force of the detaining power billeted in the same area.” [13] The rules for civilian internees reflect the same principle: “Patients requiring hospital treatment will be moved, if feasible, to a civilian hospital. The treatment must be as good as that provided for the general population.” [14]

The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which the United States has championed, [15] state similarly that “[p]risoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.” [16] By their terms, the Mandela Rules are “applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to ‘security measures.’” [17] The rules provide more detailed benchmarks that inform an assessment of whether, as one former Guantánamo commander asserted, detainees receive “first-rate” medical care that is “as good as or better than anything we would offer our own soldiers, sailors, airmen or Marines.”

The following Mandela Rules are of particular relevance to the deficiencies identified in this report:

• Rule 8: The following information shall be entered in the prisoner file management system in the course of imprisonment, where applicable:…(d) Requests and complaints, including allegations of torture or other cruel, inhuman or degrading treatment or punishment, unless they are of a confidential nature.
• Rule 9: All records … shall be kept confidential and made available only to those whose professional responsibilities require access to such records. Every prisoner shall be granted access to the records pertaining to him or her, subject to redactions authorized under domestic legislation, and shall be entitled to receive an official copy of such records upon his or her release.
• Rule 24: 1. The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status. 2. Health-care services should be organized in close relationship to the general public health administration and in a way that ensures continuity of treatment and care.
• Rule 25: 1. Every prison shall have in place a health-care service tasked with evaluating, promoting, protecting and improving the physical and mental health of prisoners, paying particular attention to prisoners with special health-care needs or with health issues that hamper their rehabilitation. 2. The health-care service shall consist of an interdisciplinary team with sufficient qualified personnel acting in full clinical independence and shall encompass sufficient expertise in psychology and psychiatry.
• Rule 26: 1. The health-care service shall prepare and maintain accurate, up-to-date and confidential individual medical files on all prisoners, and all prisoners should be granted access to their files upon request. A prisoner may appoint a third party to access his or her medical file. 2. Medical files shall be transferred to the health-care service of the receiving institution upon transfer of a prisoner and shall be subject to medical confidentiality.
• Rule 27: 1. All prisons shall ensure prompt access to medical attention in urgent cases. Prisoners who require specialized treatment or surgery shall be transferred to specialized institutions or to civil hospitals. Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide prisoners referred to them with appropriate treatment and care. 2. Clinical decisions may only be taken by the responsible health-care professionals and may not be overruled or ignored by non-medical prison staff.
• Rule 30: A physician or other qualified health-care professionals, whether or not they are required to report to the physician, shall see, talk with and examine every prisoner as soon as possible following his or her admission and thereafter as necessary. Particular attention shall be paid to: (a) Identifying health-care needs and taking all necessary measures for treatment; (b) Identifying any ill-treatment that arriving prisoners may have been subjected to prior to admission; (c) Identifying any signs of psychological or other stress brought on by the fact of imprisonment, including, but not limited to, the risk of suicide or self-harm.
• Rule 31: The physician or, where applicable, other qualified health-care professionals shall have daily access to all sick prisoners, all prisoners who complain of physical or mental health issues or injury and any prisoner to whom their attention is specially directed. All medical examinations shall be undertaken in full confidentiality.
• Rule 32: 1. The relationship between the physician or other health-care professionals and the prisoners shall be governed by the same ethical and professional standards as those applicable to patients in the community, in particular: (a) The duty of protecting prisoners’ physical and mental health and the prevention and treatment of disease on the basis of clinical grounds only; (b) Adherence to prisoners’ autonomy with regard to their own health and informed consent in the doctor-patient relationship; (c) The confidentiality of medical information, unless maintaining such confidentiality would result in a real and imminent threat to the patient or to others; (d) An absolute prohibition on engaging, actively or passively, in acts that may constitute torture or other cruel, inhuman or degrading treatment or punishment.
• Rule 34: If, in the course of examining a prisoner upon admission or providing medical care to the prisoner thereafter, health-care professionals become aware of any signs of torture or other cruel, inhuman or degrading treatment or punishment, they shall document and report such cases to the competent medical, administrative or judicial authority. Proper procedural safeguards shall be followed in order not to expose the prisoner or associated persons to foreseeable risk of harm.
• Rule 47: 1. The use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited. 2. Other instruments of restraint shall only be used when authorized by law and in the following circumstances: (a) As a precaution against escape during a transfer, provided that they are removed when the prisoner appears before a judicial or administrative authority; (b) By order of the prison director, if other methods of control fail, in order to prevent a prisoner from injuring himself or herself or others or from damaging property; in such instances, the director shall immediately alert the physician or other qualified health-care professionals and report to the higher administrative authority.
• Rule 57: 1. Every request or complaint shall be promptly dealt with and replied to without delay. If the request or complaint is rejected, or in the event of undue delay, the complainant shall be entitled to bring it before a judicial or other authority. 2. Safeguards shall be in place to ensure that prisoners can make requests or complaints safely and, if so requested by the complainant, in a confidential manner. A prisoner or other person [authorized to make a request or complaint on the prisoner’s behalf] must not be exposed to any risk of retaliation, intimidation or other negative consequences as a result of having submitted a request or complaint. 3. Allegations of torture or other cruel, inhuman or degrading treatment or punishment of prisoners shall be dealt with immediately and shall result in a prompt and impartial investigation conducted by an independent national authority in accordance with paragraphs 1 and 2 of rule 71.

Deficiencies in Medical Care

The absence of an effective firewall between medical and security operations, Guantánamo’s sordid history, and the widespread prevalence of trauma due to torture among the detainee population have created or exacerbated a variety of serious deficiencies in medical care, described below.

These deficiencies are further illustrated in four case studies, representing current and former detainees, which can be found at the end of this report.

Health conditions are also worsened by the prolonged, indefinite detention of those confined at Guantánamo, a form of abuse that has been extensively documented to carry severe and long-lasting health consequences and that the United Nations Special Rapporteur on Torture has determined constitutes cruel, inhuman, and degrading treatment. [18]

Unless and until these problems are acknowledged, understood, and addressed, complex medical conditions that cannot be managed at Guantánamo should be expected to accelerate in frequency and escalate in severity.

Subordination of Medical Needs to Security Functions

From Guantánamo’s inception, security-related policies and practices have superseded or constrained medical professionals’ authority over certain decisions that have obvious medical repercussions, and repeatedly overridden what is in detainees’ best medical interests. 

For example, the 2004 standard operating procedure for one of Guantánamo’s early prison complexes specified that medical orders would only be complied with if they did not cause a security violation—“such as serving an extra meal”—unless the violation had been pre-approved by the guard force. [19] It also required detainees to be restrained even in the operating room (unless sedated), and to be shackled during medical examinations in their cells. [20] Seemingly pursuant to that SOP, Saifullah Paracha was shackled to his bed by all four limbs while being treated for a heart condition in 2006, notwithstanding the Joint Medical Group doctor’s judgment that he needed to ambulate while recovering. [21]

According to one independent medical expert, detainees have reported “that [Joint Medical Group personnel] will order a medically necessary item, such as an extra blanket but this will not be given to them either because the [Joint Detention Group, which is responsible for detention operations at Guantánamo], misplaces the order or overrides it. Detainees report that some [Joint Medical Group personnel] are apologetic for not being able to practice medicine independent of [the Joint Detention Group’s] participation.”  [22]

Independent physicians Brigadier General (Ret) Stephen N. Xenakis, MD, and Sondra Crosby, MD – medical experts for Physicians for Human Rights who together have spent more than 1,000 hours at Guantánamo and evaluating detainees and their medical records – personally witnessed this problem on a visit to Guantánamo in late 2014 to conduct a neuropsychiatric assessment of former detainee Abu Wa’el (Jihad) Dhiab. Their evaluation included observing Mr. Dhiab’s interactions with healthcare providers during one session when he complained of severe back pain.   

Mr. Dhiab appropriately requested analgesic medication for his pain in a form that he would have been able to ingest, but was refused by the nurse provider. Furthermore, the nurse and accompanying assistant judge advocate (ASJA) reported that the attending physician refused to see Mr. Dhiab to discuss treatment of his pain and prescription of medications. The nurse and staff claimed that they were abiding by Standard Operating Procedures (SOPs) stipulating the terms of interactions with detainees.[23]

Present day policies and practices at Guantánamo demonstrate that detention-related decisions continue to supersede appropriate care generally and medical recommendations specifically. Mr. al-Tamir’s treatment again provides an example: In 2017, he was subjected to a forced cell extraction while suffering increasingly serious symptoms that foreshadowed the series of emergency back surgeries he would receive later the following year. [24] On February 7, 2018 (and again on March 1 and March 22) Guantánamo’s senior medical officer concluded that “[a]bsent extraordinary circumstances, forced cell extraction of [Mr. al-Tamir] is not medically advised at this time…. From a medical standpoint, it should only be considered in cases where dire safety or immediate potential loss of life are foreseeable. I have relayed this information and my opinion to the Commander, Joint Detention Group.” [25] The prosecution team in Mr. al-Tamir’s military commission case then assured the judge that the “the [Joint Task Force] commander and leadership is going to defer to the [Senior Medical Officer’s] opinion.” [26] That assurance stood for one month, at which point the government abruptly reversed course and explicitly conceded that the key structural obstacle to consistent provision of adequate medical care at Guantánamo persists: 

[While] the JTF-GTMO and [Joint Detention Group] Commanders will undoubtedly consider the [senior medical officer’s] highly relevant and useful information…these Commanders are not bound by the [senior medical officer’s] opinions nor will they defer to them in every instance.[27]

Pervasive Distrust Stemming from Prior Medical Complicity in Torture

A trusting doctor-patient relationship is essential for meaningful consent to care, for reaching an accurate diagnosis based on full information, and for providing effective treatment. [28] As one medical expert put it: “[Trust is] the foundation of the standard practice of medicine.”[29]

At Guantánamo, building that foundation ranges from difficult to impossible, especially when it comes to military mental health professionals. [30] That is due in large measure to Guantánamo’s legacy of torture. The Senate Armed Services Committee’s 2008 report concluding its Inquiry Into the Treatment of Detainees in U.S. Custody (SASC Report) describes in detail how the task force at Guantánamo responsible for managing counterterrorism interrogations in support of military operations researched, developed, and implemented strategies to “break detainees.” [31] Medical professionals were deeply complicit in the torture and cruel, inhuman, and degrading treatment that resulted. [32]

For example, at least during the years when substantial intelligence gathering efforts occurred at Guantánamo, medical personnel from the detainee hospital supported interrogations, including those employing torture and cruel, inhuman, and degrading treatment. [33] They conducted medical screenings to determine detainees’ “suitability” for interrogation, [34] provided emergency medical support, and sometimes observed interrogations. [35]

The interrogations unit also controlled other medical personnel, their own psychiatrists and/or psychologists who advised interrogators on how to coerce detainees (the Behavioral Science Consultation Teams, or BSCTs). [36] According to Major Paul Burney, an Army psychiatrist, he and Major John Leso – an Army psychologist who led the BSCT from June 2002 to January 2003 – “took turns observing the questioning … of Mohammad al-Qahtani.” As part of that so-called “questioning,” multiple government investigators later found, al-Qahtani “was menaced with military dogs, draped in women’s underwear, injected with intravenous fluids to make him urinate on himself, put on a leash and forced to bark like a dog, and interrogated for 18 to 20 hours at least 48 times.” [37]

Examples of detainees’ reasonable distrust of military medical providers as a result of medical complicity in torture include: 

• According to a psychiatrist/neurologist who provided an expert opinion to his Periodic Review Board, Ghaleb Al-Bihani – who was cleared for transfer out of Guantánamo in May 2014 and transferred in January 2017 – episodically refused to meet with medical staff or to follow their treatment plans. “[M]any detainees have told me that it has been impossible to form a clinician-patient relationship with [Joint Medical Group] clinicians,” the expert said, in no small part because “earlier involvement [in interrogations] has made it impossible for some detainees to trust [Joint Medical Group] clinicians who deliver care after this practice ended.” [38]
• In June 2016, Dr. Emily Keram – a psychiatrist and neurologist who evaluated Mohammed al-Qahtani for 39 hours over five days – concluded that “Mr. al-Qahtani cannot receive effective treatment for his current mental health conditions while he remains in US custody at GTMO … despite the best efforts of available and competent clinicians.” One of the factors that precludes effective treatment, she opined, is “lack of trust in the medical and mental health staff due to previous clinician involvement in interrogations.”[39]
• Sharqawi Al Hajj, who was both rendered to torture and subsequently abused at a CIA black site, similarly “refuses mental health care at Guantánamo for lack of trust.”[40]
• In 2012, the government flew a mobile cardiac unit in to Guantánamo to treat Saifullah Paracha, Guantánamo’s oldest remaining detainee (now 71 years old). Especially given his previous experience with cardiac treatment there (described above), Mr. Paracha refused care. He does not believe risks can properly be mitigated at Guantánamo or that he would be treated as a patient (versus as an “enemy combatant”). [41]
• In June of 2015, former detainee Tariq Ba Odah – who had been on a long-term hunger strike – weighed 74.5 pounds, approximately half his normal body weight. Multiple independent civilian medical experts opined that he required urgent and complex intervention. In a declaration filed in federal court, the senior medical officer, by contrast, concluded that Mr. Ba Odah was “clinically stable,” and explained that to the extent his conclusion lacked a strong evidence base that was because Mr. Ba Odah repeatedly refused care. [42]

Three independent civilian medical experts filed declarations responding to the senior medical officer’s conclusion, each of which demonstrates not only the trust deficit (and its consequences) at Guantánamo, but also several other of the medical care deficiencies discussed in this report:

Dr. Jess Ghannam, in his declaration supporting Mr. Ba Odah’s petition for habeas relief, stated: 

My clinical experience, training and basic standard-of-care principles leads me to the conclusion that the [senior medical officer’s] declaration regarding Mr. Ba Odah is flawed and reflects a strikingly inadequate response to Mr. Ba Odah’s reported condition. The [senior medical officer’s] course of treatment, as reported in his declaration, departs from the basic tenants[sic.] of diagnostic, preventative and remedial care, particularly for a patient who is so abnormally malnourished and underweight as Mr. Ba Odah. It is difficult, if not impossible, to have confidence in the conclusions it draws about his physical and mental state…. [43]

It is important to note that, however implausible the scenario may be in the Guantánamo context, medical ethical guidelines are explicit that when a patient expresses mistrust in their caregiver – either directly or through their behavior – it becomes that doctor’s professional (indeed moral) responsibility to transfer that patient to another competent, trusted doctor who can properly treat the patient. So, though the [senior medical officer’s] declaration builds a record of his efforts to provide care to Mr. Ba Odah, the ethical guidelines governing the practice of medicine actually require that the [senior medical officer] facilitate Mr. Ba Odah’s access to competent care from another physician. [44]

In her declaration supporting Mr. Ba Odah’s petition, Dr. Sondra Crosby stated:

[G]iven that the medical staff at Guantánamo orders and processes Mr. Ba Odah’s forcible feeding (which, as the [senior medical officer] acknowledges, may include forced cell extractions), it is reasonable and common that Mr. Ba Odah would regard them as coercive and part of the prison structure. Nothing in the [senior medical officer’s] declaration changes my assessment that Mr. Ba Odah’s distrust of Guantánamo medical staff is reasonable. [45]

Nothing in the [senior medical officer’s] declaration causes me to alter my original opinion signed on June 22, 2015, concluding that Mr. Ba Odah, by virtue of his extremely low 74-pound weight and as-yet undiagnosed symptomology, is suffering from the grave consequences of severe malnutrition and that he is in need of medical intervention by independent and trusted medical personnel in order to limit the risk of death or disability he currently faces. Indeed, the [senior medical officer’s] declaration furthers my concern, insofar as it affirms that Mr. Ba Odah is at a dangerously low weight (and has been for nearly a year), that he has not been adequately evaluated or treated, and that his understandable distrust of the Guantánamo medical staff is preventing the possibility of treatment and recovery. I also consider several aspects of the [senior medical officer’s] assessment, particularly his summary conclusion that Mr. Ba Odah is “clinically stable,” to be based on insufficiently reliable clinical data that cannot form the basis of a medically responsible judgment. [46]

Dr. Rami Bailony’s declaration supporting the petition stated:  

Nothing in the [senior medical officer’s] declaration indicates that he performed the predicate analysis that would justify his conclusion that Mr. Ba Odah is clinically stable, other than reportedly checking Mr. Ba Odah’s vital signs on one occasion roughly four months before the [senior medical officer’s] declaration was signed. Indeed, the reported observations of Mr. Ba Odah point to precisely the opposite determination. To be more direct, in my experience, a physician would not assess a patient to be clinically stable based merely on the outward appearance of “normal” behavior or functioning. There are numerous diseases – particularly in cases of chronic, severe malnourishment – that do not appear to interfere with normal human functioning until they progress to their final, lethal stages. [47]

Other security-related policies and practices that have at times overridden detainees’ medical needs, described in the previous subsection, have also contributed to detainees’ distrust of Guantánamo medical providers.

Discontinuity of Care

Several independent civilian medical experts have noted the rapid rotation of medical personnel at Guantánamo, the challenges it creates for any real continuity of care, and how it intensifies the trust deficit described above. [48] For instance, Mr. al-Tamir had three different primary care physicians between January and March 2019. According to one medical expert, “Detainees have often told me that they occasionally have a clinician whom they perceive as interested and helpful in their care, and that it is painful for them when these clinicians rotate out of GTMO and a new clinician takes their place.” [49]The lack of continuity of care is especially problematic in the context of mental health care.

Withholding of medical records, including through improper classification

There appears to be a widespread practice of Joint Medical Group personnel, including mental health professionals, not inquiring into detainees’ experiences in the CIA’s rendition, detention and interrogation program, or otherwise with respect to detainees’ interrogation by U.S. forces.  [50]

Indeed, according to Dr. Michael Fahey Traver, an Army psychiatrist stationed at Guantánamo in 2013 and 2014, mental health professionals understood that they were not to ask about a detainee’s interrogation experiences, either at Guantánamo or with the CIA. “You just weren’t allowed to talk about those things, even with them,” he said. If a detainee raised the subject of his prior treatment, Dr. Traver said his predecessor had told him “to redirect the conversation.” [51]

That omission is critical. Decades of extensive medical and psychological literature demonstrate that torture and ill treatment can result in severe health consequences potentially affecting every aspect of the body and mind. Uncovering such trauma exposure is essential to documenting adequate and accurate medical history and to the treatment of patients.

Not surprisingly, failure to do so has led to misdiagnoses, improper treatment, and/or lack of treatment. The most prominent publicly available example, described in detail in his case study, is that of Abd al-Rahim al-Nashiri. The declassified executive summary of the Senate Select Committee on Intelligence’s study of the CIA’s former detention and interrogation program described in painful detail Mr. al-Nashiri’s torture, and yet – at least through April of 2014 – no Guantánamo medical professional had ever recorded a trauma history in his records. As such, Dr. Crosby explains that Mr. al-Nashiri has been suffering for years with untreated Post Traumatic Stress Disorder (PTSD), including at times being punished for behaviors that are in fact symptoms of his PTSD. [52]

This hole in detainees’ medical records also impacts doctors’ ability to diagnose and properly treat physical conditions. These include musculoskeletal pain (e.g., in a detainee’s shoulders, from having had his wrists shackled behind his back and then being hung from his arms); traumatic brain injury (e.g., from repeated blows to the head); or damage resulting from what the CIA euphemistically described as “rectal feeding” (i.e., pumping food into a detainee’s rectum through a tube forced into his anus against his will). 

Rapid rotation of medical personnel and resulting lack of continuity of care also make it more difficult to create and maintain comprehensive, accurate medical records.

Withholding of medical records, including through improper classification

There are two inter-related problems with access to medical records at Guantánamo: the government’s general reluctance to turn detainees’ own records over to them and the extent to which medical records are classified.  

Access to one’s personal medical information is a basic right recognized in medical policy guidelines. [53] And yet detainees’ counsel, both in the habeas context and before the military commissions, routinely report that requests for medical records made on behalf of their clients (and so obviously with their clients’ consent) are denied outright or result in partial production after significant delay.

For example, for two years the government refused to provide medical records to counsel for Tarek el-Sawah. [54] As of this writing, the government was still fighting Mr. Al Hajj’s request for medical records in federal court. [55] An independent expert who examined Mustafa Muhammad Abu Faraj al-Libi in person was not permitted to review his then-current medical records. [56] And, notwithstanding the cascade of medical crises that Mr. al-Tamir has suffered (referenced above and described in detail in his case study), even his counsel still does not have a comprehensive set of his medical records. 

Improper classification appears to be a contributor to the access problem, at least for some detainees. Numerous counsel have reported that substantial portions of their clients’ records are marked “classified” – sometimes at the highest level [57] – and that, as such, even military medical providers at Guantánamo may not be able to review those records unless they have the necessary security clearance; in some cases, they may be prohibited from meeting alone with certain detainees. 

Pursuant to Executive Order 13526, information can only be classified if its “unauthorized disclosure … reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage… If there is significant doubt about the need to classify information, it shall not be classified.” [58] Applying that standard, it is difficult to understand how a detainee’s medical record could properly be classified, especially given the absence of redactions relating to treatment of detainees in CIA custody in both the declassified executive summary of the Senate Select Committee on Intelligence study of the CIA’s former detention and interrogation program and the CIA’s response to that study.  [59]

Lack of medical capabilities

As General Kelly warned six years ago, Guantánamo simply does not have the capability – with respect to either expertise or equipment – to address appropriately the medical issues that detainees are facing. These issues include both psychiatric and physical traumas that medical examinations have documented are associated with prolonged indefinite detention. [60] Examples of insufficient capability include:

• Guantánamo lacks culturally informed treatment modalities; [61] 
• Torture rehabilitation services are not available at Guantánamo, both because medical providers there do not possess the necessary expertise to deliver that care and because, in many ways, the setting is the antithesis of what is required for effective treatment, which includes: 
  • Providing a sense of control to the victim over key features of the rehabilitation context, content, and process;
  • Restoring a felt sense of safety as it pertains to the internal physiological state and external habitat of the victim, including adequate management of pain;
  • Providing the victim with trusted human connections that are consistently available, including regular predictable access to the treatment provider(s) and regular meaningful access to other trustworthy sources of social support; and
  • The treating provider(s) must be sufficiently skilled and experienced in treating severe trauma explicitly designed and perpetrated by other human beings. [62]
• Guantánamo has never had a permanent, functional MRI machine with a technician capable of performing the MRI and a radiologist capable of reading the results. [63]
• According to Dr. Ghannam, “Often times certain basic diagnostic tests are not possible because no such facilities exist, and non-detainee individuals are forced to leave to have appropriate diagnostic work-ups. Additionally, certain laboratory tests have to be sent off-island because the facilities at Guantánamo are not equipped to carry out these tests.” [64]
• Guantánamo medical providers, as well as independent civilian medical experts, have on numerous occasions recommended medical tests that cannot be performed, or treatment that cannot be delivered, at Guantánamo. [65]
• At times, seemingly appropriate testing will occur, but the results produced to independent civilian medical experts are insufficient. For example, in Mr. Dhiab’s case, a “CT scan provided by Guantánamo contained approximately 8 images and [was] inadequate for assessment of Mr. Dhiab’s complaints, injuries, and conditions.” [66] It is unclear to what extent this is a problem attributable to medical capabilities, the records access issue discussed above, or a combination of both.
• Independent civilian medical experts’ experience is that the senior medical officers tend to be relatively junior for the post to which they are assigned, and as such are put in a position of responsibility over complex medical situations some of which may be beyond their ability and expertise. 
• Guantánamo lacks specialists in a host of areas that are becoming increasingly relevant as the detainee population ages and medical needs become more complex. This includes insufficient capability to address the complex mental health needs of a population suffering the profound psychological distress associated with prolonged indefinite detention. [67]

This is only an illustrative list. The equipment and expertise required to provide consistent, adequate care at Guantánamo will grow over time.  

Neglect

Perhaps not surprisingly given the deficiencies and challenges described above, independent civilian medical experts have identified repeated instances where detainees’ medical needs have been neglected. For example:

• As noted above, in 2010 Guantánamo medical staff diagnosed Mr. al-Tamir with a serious back condition – spinal stenosis – but did not arrange for surgical intervention until 2018, when Mr. al-Tamir’s condition had become so dire that he was at significant risk of paralysis. According to former PHR program director Homer Venters, MD, MS, and PHR Senior Medical Advisor Vincent Iacopino, MD, PhD, who wrote to then Secretary of Defense James Mattis urging immediate treatment for Mr. al-Tamir,“[i]t is common medical knowledge, at the most basic level, that spinal stenosis associated with increasing motor weakness requires urgent diagnosis and surgical treatment.” [68]
• In the case of Tarek el-Sawah, a detainee who became obese at Guantánamo, Dr. Crosby concluded that notwithstanding an appropriate medication regimen to treat aspects of his condition, “the lack of diagnostic pursuits (despite recommendations by Guantánamo doctors) of his respiratory and cardiac conditions rises to the level of neglect.” [69] (See Mr. el-Sawah’s case study for further details.)
• In the case of former detainee Mr. Dhiab, Dr. Xenakis – who evaluated Mr. Dhiab and examined his medical records – found that “[t]he living conditions in his cell aggravate his pain and discomfort. Mr. Dhiab sleeps on the metal surface covered by one ISO-MAT [thin sleeping pad] that is inadequate in allowing him to sleep comfortably and does not conform to accepted standards of medical care.” [70]He further found that “the staff at Guantánamo routinely withheld Dhiab’s crutches and wheelchair and refused to give him basic over-the-counter painkillers.” [71]
• Mustafa Ahmed al-Hawsawi sought medical intervention for more than a decade to treat a rectal prolapse caused by his torture in CIA custody, but did not receive the surgery he needed until 2016. [72]From 2008 until his surgery, Mr. Hawsawi “sat gingerly on a pillow” during military commission hearings due to his rectal prolapse. [73]

The inappropriate role of litigation in access to medical care and detainee health

Whether a detainee is being prosecuted before the military commissions or pursuing federal court habeas corpus litigation has a substantial impact – in several ways – on both his access to medical care (including medical records) and the care he receives. 

First, unless a detainee is involved in active litigation, it appears to be extremely difficult, if not impossible, for him to access independent civilian medical professionals, and, in some cases, medical records. [74] For example, after multiple requests for appointment of such an expert, counsel for Mr. al-Libi received the following response from the Convening Authority, the office that oversees the military commissions:

I considered carefully your request … for Dr. Xenakis to be assigned to Mr. al Libi’s case and to be granted permission to medically evaluate him as a health-care provider. For the reasons set forth below, I am unable to grant your request.

Under R.M.C. 703(d), I may only appoint experts at government expense to assist the defense in military commissions. There are no charges pending against Mr. al Libi nor, per your request, are you seeking to have Dr. Xenakis aid in your legal representation of Mr. al Libi. Your request seeks to address a medical condition which you believe afflicts Mr. al Libi. Given the circumstances, I may not grant your request. [75]

Second, for detainees in active federal court habeas corpus litigation, while some judges have granted requests for independent civilian medical experts with more frequency recently, that was not the case for many years, and it remains sporadic.[76] Moreover, even when the Court does grant such a request, it is limited to the context of a litigation issue. In other words, the independent expert will be appointed, for example, to assess whether a detainee is competent to participate in legal proceedings, or whether his medical condition impedes his ability to communicate with his lawyers. This does not allow for a meaningful and comprehensive assessment of a detainee’s health or the care with which he is being provided.   

Third, criminal prosecution before the military commissions has, in some cases, exacerbated detainees’ medical conditions. For example, the prosecution in Mr. al-Tamir’s case has consistently opposed continuances to the litigation schedule based on health concerns. In 2017 he was subjected to a forced cell extraction, despite his previously described chronic and worsening back pain, in order to transport him to a commission proceeding. [77] In late 2018, Mr. al-Tamir suffered a prolonged back spasm at the beginning of a military commission session. During the next session, the guard force rolled a hospital bed into the courtroom, and, when it was noted that Mr. al-Tamir’s pain was increasing, he was administered Valium and forced to nap in the courtroom. [78] It is clear that shackling, movement, and attendance at commission hearings and at meetings with his attorneys – both required for him to exercise his constitutional rights to be present at the proceedings against him and to counsel – put additional physical strains on his condition.  

In the case of Mr. al-Nashiri – whose torture is described in excruciating detail in the declassified executive summary of the Senate Select Committee on Intelligence study of the CIA’s former detention and interrogation program – Dr. Crosby has opined that the commission process itself is likely to irreparably harm him:  

In my opinion, a capital trial of Mr. Al-Nashiri in the current Military Commission regime will have a profoundly harmful and possibly long lasting effect upon him, in addition to the permanent harm already inflicted. While I would expect a capital trial in any court to be stressful, my knowledge of the more predictable procedures of federal confinement and trials causes me to believe that the contemplated military trial is stressful on a different order of magnitude and, given Mr. Al-Nashiri’s situation and fragile psychological state induced by torture, exponentially more harmful.

Indeed, I have serious doubts about Mr. Al-Nashiri’s ability to remain physically or mentally capable of handling the physical and emotional stress of the military trial process. [79]

Lastly, military commission prosecutors appear to have access to detainees’ medical records – including records to which detainees themselves, or their lawyers, do not, and well beyond that which would be afforded through discovery in an ordinary criminal trial. Such access has led some detainees to refuse medical care for fear that something documented in their medical records will disadvantage them in litigation.

Conclusion

The experiences of detainees and independent civilian medical experts with medical care at Guantánamo not only broadly refute the claim that detainees receive care equivalent to that of U.S. service members, but also evidence specific violations of the Mandela Rules, the universally recognized UN standard minimum rules for the treatment of prisoners. The violations include:

• Failure to take, and document, detainees’ trauma histories – especially with regard to torture and cruel, inhuman and degrading treatment suffered during U.S. detention and interrogation operations – and corresponding failure to conduct independent investigations into any such allegations (Rules 8, 26, 30, 34, 57); 
• Failure to afford medical personnel true clinical independence – including final decision-making authority over decisions that have medical repercussions – and, more generally, to prioritize detainee medical needs over security functions (Rules 25, 27);
• Failure either to ensure consistent prompt access to medical attention in urgent cases or to transfer detainees to the United States for treatment that cannot adequately be provided at Guantánamo (Rule 27);
• Failure to provide detainees with timely and meaningful access to their own medical records (Rules 9, 26, 57);
• Failure to protect confidentiality of detainees’ medical records, in particular by allowing broad access to such records by prosecutors (Rules 9; 26, 32); 
• Failure to acquire and retain sufficient capability – in either personnel or equipment – to provide appropriate treatment and care, especially but not only for detainees with complex health needs arising from a history of torture and trauma (Rules 25, 27);
• Failure to ensure continuity of treatment and care of detainees due to frequent rotation of military medical personnel (Rule 24);
• Failure to allow those detainees who understandably distrust military medical providers to  access independent civilian physicians – or other qualified medical personnel that detainees trust – in a meaningful, ongoing fashion, if at all (Rule 31); and
• Failure to adhere to the prohibition on the use of inherently degrading or painful instruments of restraint, and to limit the use of all forms of restraint to circumstances where there is a legitimate risk of escape, or – after exhausting other less severe forms of control – of a detainee injuring himself or damaging property (Rule 47).  

Recommendations

It is not possible to fully resolve all of these serious medical care deficiencies at Guantánamo while the detention facility remains open. For example, effective torture rehabilitation cannot be provided there, and detainees will continue to suffer the profound impact of indefinite detention as long as they remain detained indefinitely. But this fact cannot and must not justify inaction. 

Unless and until Guantánamo is closed – which the Center for Victims of Torture and Physicians for Human Rights have long advocated it must be – the U.S. Congress, Judiciary, and Executive Branch can and should take the following steps, respectively, toward closing the gap between the quality of care the United States claims to provide and what is actually happening on the ground at Guantánamo.

For the U.S. Congress:

• Lift the current legislative ban on transferring Guantánamo detainees to the United States, or at minimum create an exception for any detainee for whom Guantánamo cannot provide evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals.

1. Require the Executive Branch to transfer to the United States for medical care any detainee with a medical condition that cannot be evaluated and treated at Guantánamo in a manner that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals.
2. Require the Department of Defense to provide, upon a detainee’s request – including requests made through a detainee’s counsel or other representative with the detainee’s consent – timely and meaningful access to all of his own medical records generated or maintained by the Department of Defense and any agency or entity thereof. 
3. Prohibit the disclosure of detainees’ medical records to prosecutors in a military commission or other criminal proceeding without the consent of the detainee, with two exceptions: First, when disclosure is ordered by a military judge or other court of competent jurisdiction after notice to the detainee and the opportunity to be heard, and a finding that the medical records are material to proof of a crime charged in the proceeding; or, second, when disclosure is otherwise authorized by an applicable statute, regulation, or rule governing discovery in the proceeding.  
4. Create a new Chief Medical Officer (CMO) to be stationed at Guantánamo and who would oversee the provision of medical care to detainees. The CMO should be a senior, civilian physician charged with ensuring that detainees are provided with evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals. This includes ensuring that detainees are not subject to policies or practices that conflict with, undermine, or otherwise negatively impact their health. The CMO should have final decision-making authority over any decision related to medical care for individuals detained at Guantánamo, including, but not limited to, decisions related to assessment, diagnosis, treatment, and medical accommodations to detention conditions of confinement and operating procedures. The CMO should report to a chain of command outside the military and with additional oversight by the independent commission recommended below (Recommendation 7).
5. Conduct thorough and regular oversight over medical care at Guantánamo to ensure that detainees are being provided with evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals. This should include ensuring that litigation does not negatively impact the medical care with which detainees should be provided or otherwise conflict with their best medical interests.
6. Establish an independent commission to assess, report on, and provide further recommendations with respect to the provision of medical care at Guantánamo. The commission should be comprised of independent and senior civilian medical experts, including: an internist with experience in geriatric medicine; an internist with experience in treating victims of torture; a general surgeon with experience in treating victims of torture; a psychologist with experience in treating victims of torture; and a neuropsychiatrist with experience in treating victims of torture and patients with traumatic brain injury. All commission members should be board certified, licensed, and have significant experience working in a cross-cultural setting.

The commission’s mandate should include examination of the following issues:

• Whether and how policies, practices, and the command structure at Guantánamo affect medical providers’ autonomy and efficacy, decision-making that has medical repercussions, and the medical (including mental health) interests of individuals detained at Guantánamo;  
• The ability of military medical providers, in particular but not only Joint Medical Group staff, to develop trusting doctor-patient relationships with individuals detained at Guantánamo;
• The comprehensiveness and accuracy of the medical records of individuals detained at Guantánamo;
• The degree and timeliness of access to detainees’ medical records for the detainees themselves; Joint Medical Group, Joint Detention Group and other Joint Task Force Guantánamo staff; outside medical specialists, whether brought in by Joint Task Force Guantánamo or retained by detainees; and government lawyers, detainees’ counsel, and judges in both military commissions and federal court proceedings;
• The extent to which medical records of individuals detained at Guantánamo are classified, at what level, and how this impacts access for each of the above stakeholders as well as the provision of medical care to detainees;
• The duration of assignments/rotation schedules (on and off-island) for Joint Medical Group staff, and how those impact the quality of medical care provided to individuals detained at Guantánamo;
• Medical care capability at Guantánamo with respect to both equipment and expertise necessary to provide evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals; and
• For each of the above, whether and how the assessment differs for individuals detained at Guantánamo who are: (i) torture survivors; (ii) being prosecuted before the military commissions, and (iii) pursuing habeas corpus relief in federal court. 

The commission should have full access to, and the power to compel, any information that it needs to fulfill its mandate – with detainees’ consent where necessary – including both documents and personnel. Where security clearances are necessary, the Executive Branch should be required to facilitate the process expeditiously. 

The commission should be mandated to report back to Congress at specified interim periods, including whenever it deems appropriate. It should also be required to produce a final report with findings and recommendations that include any improvements to be made related to the provision of medical care at Guantánamo going forward, and whether continuing monitoring, assessment, and reporting is advisable following issuance of the final report.
F

For the U.S. Judiciary and Military Commissions:

1. Grant requests for, or order proactively, independent medical evaluations for any detainee who presents with a medical condition or concern about which there is a reasonable question regarding whether he is being provided with medical care that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals.
2. Require the government to produce expeditiously any medical records that detainees request.
3. Prohibit the disclosure of detainees’ medical records to prosecutors in a military commission or other criminal proceeding without the consent of the detainee, with two exceptions: First, when disclosure is ordered by a military judge or other court of competent jurisdiction after notice to the detainee and the opportunity to be heard, and a finding that the medical records are material to proof of a crime charged in the proceeding; or, second, when disclosure is otherwise authorized by an applicable statute, regulation, or rule governing discovery in the proceeding.  

For the U.S. Executive Branch:

1. If Congress lifts the ban on transfers to the United States, even if only for medical purposes, transfer to the United States any detainee for whom Guantánamo cannot provide evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for the relevant condition, symptoms, illness, and/or disease and that is widely used by health care professionals.
2. Transfer out of Guantánamo any detainee who, by virtue of his medical circumstances, does not pose a threat to the United States.
3. Allow meaningful and regular access to Guantánamo by civilian medical experts, including permitting such experts to evaluate detainees in an appropriate setting – without the use of restraints and outside the presence of any other personnel – and to have timely access to all medical records, subject to detainees’ consent.
4. Declassify medical records that have already been classified and discontinue classifying medical records going forward. Legitimate identifiers of government personnel may be redacted in medical records prior to their public release if the government can demonstrate that the redactions meet the requirements of Executive Order 13526.
5. Upon a detainee’s request, including requests made by counsel with the detainee’s consent, provide the detainee with timely and meaningful access to any and all of his own medical records generated or maintained by the Department of Defense, the CIA, and any agency or entity thereof.

Case Studies

Nashwan al-Tamir

We are deeply concerned that the facts of this case do not support DOD’s public claim of appropriate, high quality, and timely medical/surgical care. With all due respect to the medical personnel who traveled on short notice to Guantánamo and performed the therapeutic intervention, especially with Hurricane Irma approaching, this case exemplifies serious problems in the accurate and timely diagnosis of emergency medical/surgical conditions.

Homer Venters, MD, MS, and Vincent Iacopino, MD, PhD (9/8/2017) [80]

Nashwan al-Tamir was captured in Turkey in 2006, rendered to a CIA black site, then transferred to the detention center at Guantánamo Bay, Cuba. [81] As of June 2019, he had been held captive at Guantanamo for 12 years and nine months.

According to portions of Mr. al-Tamir’s medical records, he has been complaining about and seeking treatment for chronic and worsening back pain since he initially entered U.S. custody in 2006. After his arrival at Guantánamo Bay, Mr. al-Tamir informed the detention facility staff that a previous MRI had confirmed that he had a herniated disc. By June 2008 his pain began radiating down his left thigh – a condition that worsened the following year – and he expressed concern about how long it was taking to resolve the issue. 

Throughout 2010, Mr. al-Tamir received a variety of treatments – over-the-counter medication (typically BenGay and ibuprofen) and physical therapy – which proved ineffective. In September of that year, he was diagnosed with spinal stenosis after a CT scan. And yet, Mr. al-Tamir would not receive surgical intervention until seven years after his diagnosis. According to doctors Homer Venters, MD, MS, former PHR director of programs, and Vincent Iacopino, MD, PhD, PHR senior medical advisor – both of whom wrote to the defense secretary when they learned about Mr. al-Tamir’s condition in 2017 – “[i]t is common medical knowledge, at the most basic level, that spinal stenosis associated with increasing motor weakness requires urgent diagnosis and surgical treatment.” [82]

From 2011 through 2016, Mr. al-Tamir’s symptoms persisted and his health gradually declined. Medical records from this period reflect almost daily complaints regarding serious back pain. He was given some further testing, though the details and scope of any medical assessments remain unclear because neither Mr. al-Tamir nor his counsel have ever been provided with a complete set of his medical records. 

On January 9, 2017, during a military commissions proceeding, Mr. al-Tamir was subjected to a forced cell extraction when he refused to be handcuffed by a female guard-force member. A few weeks after this violent incident, Joint Medical Group staff conducted a CT scan that showed further degeneration of his spine and recommended that Mr. al-Tamir undergo an MRI; however, due to the continued unavailability of an MRI machine on-base, that test was not performed. That summer, Mr. al-Tamir began to experience a significant loss of sensation in both of his feet and a loss of bladder control. He was admitted to the Guantánamo base hospital in August 2017. An X-ray and CT scans showed that his back condition had worsened. Although Mr. al-Tamir’s condition had not improved, and scheduled attorney-client visits had been cancelled due to his declining medical condition, Guantánamo officials cleared him to attend pretrial hearings held immediately thereafter.

On August 7, 2017, a doctor told Mr. al-Tamir that he needed to see a spinal surgeon, who would arrive in October, but that an injection might mitigate the problem until then. Orthopedic surgeon and PHR Expert James Cobey, MD, MPH, FACS – who reviewed what had been provided of Mr. al-Tamir’s medical records – described that plan as follows:

The current treatment plan as reported, consisting of an anesthesiologist visiting in September and a neurosurgeon visiting in October, is unacceptable, inconsistent with the standard of care, and likely to result in permanent neurologic damage. I would not expect a simple epidural injection with steroids to have any real effect on a compression problem. The epidural may temporarily help the foraminal stenosis, but would not help the symptoms of the central stenosis. I urge you in no uncertain terms to take immediate action to effectively diagnose and treat the detainee’s medical emergency. [83]

Contemporaneous records indicate that Guantánamo medical staff failed to treat Mr. al-Tamir’s medical status as emergent until early September 2018, after additional correspondence by medical non-profit organizations voiced serious concerns. Shortly thereafter, in an implicit acknowledgement of the crisis it had allowed to befall Mr. al-Tamir, U.S. authorities flew a special medical team to Guantánamo to perform emergency surgery. Over the next eight months, Mr. al-Tamir underwent three additional surgical procedures on his spine, all performed by surgical teams flown in from the mainland. Correspondence from military medical teams disclosed their fear associated with performing such complicated surgical procedures on-base – one Guantánamo physician wrote to the Base Commander: “The prospect of attempting [the needed surgery] at [US Naval Hospital Guantanamo Bay] scares the hell out of me.” [84] At least one procedure was devoted exclusively to correcting problems stemming from the placement of hardware in an earlier procedure.

Mr. al-Tamir’s treating neurosurgeon recently testified that, as a result of his quick succession of spinal surgeries, Mr. al-Tamir could suffer from neuropathy, chronic pain, and muscle spasms for the rest of his life. He also testified that Mr. al-Tamir may need additional spinal surgeries in the future, and that certain accommodations should be made by the military commissions and the detention facility staff to avoid “acute exacerbations” of his conditions.

None of this has deterred the military commissions from forging ahead with Mr. al-Tamir’s prosecution. Prosecutors have consistently opposed any continuances to the litigation schedule based on health concerns. In November 2018, Mr. al-Tamir suffered an hour-long back spasm at the beginning of a military commission session. During the next session a few days later, the guard force rolled a hospital bed into the courtroom, and, when it was noted that his pain was increasing, Mr. al-Tamir was administered Valium and forced to nap in the courtroom. His current pain medication regimen relies on the regular administration of opioid pain medication (e.g., Percocet), benzodiazepines (e.g., Valium), and muscle relaxants. All of these medications have a sedating effect, according to his military doctors. 

According to press reports from January 2019, the Defense Department is shipping a large, handicapped-accessible cell to Guantánamo so that Mr. al-Tamir could “live at the court” during proceedings while continuing to recover from his surgeries. [85] The cell was supposed to be operational by March, but was not. Instead, the detention facility provided what Mr. al-Tamir’s counsel described as an uninhabitable substitute that fell far short of the medical accommodations promised. 

Sharqawi Al Hajj

The government appears to discount legitimate concern about Mr. Al Hajj’s health because it states that Mr. Al Hajj’s symptoms are explained by a benign liver condition … and that he is not suffering from other potentially serious underlying illnesses. It fails to address the effects of the symptoms themselves, whatever their source. 
…
My familiarity with the medical facilities at Guantánamo also raises concern that in the midst of a true emergency, Guantánamo Bay’s medical facilities would not be equipped to provide the necessary medical care to Mr. Al Hajj, including the availability of an MRI for diagnostic procedures and advanced surgical equipment and personnel.  

Jess Ghannam, MD (9/26/2017) [86]

Mr. Sharqawi Al Hajj is a 43-year-old citizen of Yemen. He was taken into custody by U.S. and Pakistani forces in February 2002 then rendered to Jordan, where for nearly two years he was detained – hidden from the International Committee of the Red Cross – and tortured, including through extensive beatings on his feet and threats of electrocution and sexual abuse. [87]He was then rendered to a CIA black site prison in Afghanistan “where he ‘was kept in complete darkness and subjected to continuous loud music’” until his transfer in 2004 to the detention center at Guantánamo Bay, Cuba. [88] As of June 2019, Mr. Al Hajj had been held captive there for 14 years and nine months. 

In July 2017, after several weeks of a hunger strike because of increasing despair over his poor health and indefinite detention, Mr. Al Hajj fell unconscious and required emergency hospitalization. Shortly thereafter, he brought an emergency motion for an independent medical evaluation and production of his medical records. [89] The government opposed both requests and, as of June 2019, the court had not ruled. 

Mr. Al Hajj’s longstanding health problems include profound weakness and fatigue, recurrent jaundice, severe abdominal pain, difficult painful urination, and constipation. He was also diagnosed with Hepatitis B prior to his detention at Guantánamo. In the months leading up to September 2017, Mr. Al Hajj’s counsel noticed his health declining appreciably: “He appeared frail, gaunt, and had noticeable difficulty maintaining energy and concentration.”  [90]

Medical providers at Guantánamo conducted multiple ultrasounds and CT scans on Mr. Al Hajj, and he was evaluated several times by a gastroenterologist who performed an endoscope examination and a colonoscopy. Based on the results, Guantánamo medical staff diagnosed Mr. Al Hajj with Gilbert’s Syndrome (“a benign congenital condition”) and a hereditary enzyme deficiency, neither of which, they determined, required treatment. Instead, medical staff concluded that Mr. Al Hajj’s pain and suffering were a result of his hunger strike, and that his “life and health are not in jeopardy.” [91]

Mr. Al Hajj’s counsel retained two outside medical experts, including Dr. Jess Ghannam, to evaluate Mr. Al Hajj’s health circumstances to the extent possible in light of the government’s refusals to turn over Mr. Al Hajj’s medical records or to allow for an independent medical evaluation. Notwithstanding these limitations, several of Dr. Ghannam’s findings bear mention: 

• The gastro-intestinal difficulties, chronic pain, fatigue, and general physical impairment Mr. Al Hajj is experiencing he reported before his hunger strike began, and those symptoms “can cause severe physical and neuropsychological damage if they persist.” [92] In the midst of a hunger strike “they can lead to medically irreparable harm if not properly diagnosed and treated.” [93]
• Mr. Al Hajj repeatedly voiced distrust of Guantánamo medical care providers, “which is a subjective experience and separate from the quality of the care that may be being offered, and can persist even if he accepts offered medical care.” This led Dr. Ghannam “to question the reliability of the assessments about Mr. Al Hajj’s condition. Trust in one’s doctor is a necessary precondition to being forthcoming with information and consenting to care, which are in turn essential to making an accurate diagnosis and prognosis and providing effective treatment. It is problematic, if not impossible, for the standard doctor-patient relationship to develop at Guantánamo, thereby weakening the foundation of the standard practice of medicine – the establishment of trust in one’s doctor. All personnel in Guantánamo, including medical staff, are perceived and experienced as part of the detainee’s original torture project. In my experience, the possibility of developing trust in a doctor is virtually impossible for Guantánamo detainees and, as a result, it is not possible to comfortably rely on the [senior medical officer’s] assurance that Mr. Al Hajj is ‘in good health.’” [94]
• “In my experience in other Guantánamo detainee cases, it is not uncommon for detainees complaining of ailments to be characterized as stable despite serious concerns and in some cases the need ultimately for emergency care.”  [95]
• “Access to one’s personal medical information is a basic right recognized in medical policy guidelines. Having access to Mr. Al Hajj’s medical records would provide important insight into his condition and allow for further preventive steps to avoid the possibility of irreparable medical harm that he faces…. His complete medical records, in conjunction with an independent medical evaluation with a doctor with whom trust could be established, is the only reasonable standard to truly assess if Mr. Al Hajj is ‘in good health’ and provide basic and adequate health care that would prevent irreparable harm to his already fragile condition.” [96]

On October 26, 2018, counsel for Mr. Al Hajj reported that his “health continues to be in jeopardy. He continues to engage in prolonged hunger strikes as a desperate response to his ill health and inadequate health care; his protests further aggravate his health concerns; and his worsened condition leads to greater distress and more extreme protests.” Counsel was especially concerned with an apparent decline in Mr. Al Hajj’s mental health, given that Mr. Al Hajj “refuses mental health care at Guantánamo for lack of trust.” [97] Counsel alerted Guantánamo officials and the Justice Department directly to her concern and, as of June 2019, had received no response.

Tarek el-Sawah

It is my strong conclusion that Mr. El-Sawah is in extremely poor health and requires timely medical evaluation and treatment for multiple serious medical conditions. I am alarmed that since my initial evaluation in 2011, appropriate testing and treatment has not occurred. This failure of treatment is despite multiple and repeated recommendations from military physicians, whose opinions and recommendations are generally in agreement with my own. Because of the failure of Guantánamo officials to comply with medical recommendations that would meet basic standards of care, Mr. El-Sawah’s health has markedly deteriorated.

Sondra Crosby, MD (9/3/2013)[98]

Tarek el-Sawah was arrested by the Northern Alliance in Afghanistan then turned over to U.S. forces in December 2001. He was sent to the detention center at Guantánamo Bay, Cuba in May 2002. In September 2008, the Bush administration recommended he be transferred out of Guantánamo. On January 20, 2016, he was transferred to Bosnia and Herzegovina. 

When he arrived at Guantánamo, Mr. el-Sawah (who is five feet, ten inches tall) weighed approximately 215 pounds. [99] By August 2013 – as a result of interrogators exploiting an eating disorder by offering him excessive amounts of food in exchange for information [100] – he weighed over 400 pounds and suffered from “multiple serious life threatening medical co-morbidities” such that he was at “significant increased risk of mortality.” [101] His counsel, to whom the government had refused to provide any medical records over the course of the two previous years, filed a motion in Mr. el-Sawah’s habeas case for emergency medical care. [102]

The government responded that Mr. el-Sawah was being afforded sufficient medical care, but to the extent there were tests and treatment that he did not receive it was because “he refuses medical treatment on a regular basis.” [103] Mr. el-Sawah disagreed with that characterization; what he refused was having his legs and hands shackled for transport to medical appointments pursuant to a newly instituted policy. [104] The government disputed that leg shackling was required (at least prospectively) [105] and stated that “nothing medically prohibits” hand shackling Mr. el-Sawah. [106] More generally – on the basis of a declaration submitted by a doctor from the Joint Medical Group who reviewed Mr. el-Sawah’s medical records but who did not attest to having personally examined him – the government claimed that Mr. el-Sawah’s “life is not in imminent danger, nor is he in immediate danger of losing his ability to communicate with others.” [107]

Two independent medical experts, Sondra Crosby, MD and Brigadier General (Ret) Stephen Xenakis, MD, medical experts for Physicians for Human Rights, were allowed to examine Mr. el-Sawah and review the portions of his medical records that his counsel was able to obtain, both before and after the filing of the emergency motion. Dr. Crosby evaluated him in March 2011 and March 2012, and visited with him briefly in July 2013. She again evaluated him and performed a brief physical examination on November 14, 2013. Dr. Xenakis conducted a two-hour medical interview with Mr. el-Sawah on August 13, 2013 and joined Dr. Crosby for the 2012 evaluation. 

Both doctors found failures to meet the basic standard of medical care. Although the government’s attention to Mr. el-Sawah’s condition improved markedly following the filing of the emergency motion, [108] in some cases failures persisted. Doctors Crosby and Xenakis attribute failures to meet the basic standard of care to various combinations of the following: proper diagnoses and recommendations but lack of equipment or expertise to perform the necessary tests; improper or incomplete evaluation and treatment; unrealistic policies that interfered with Mr. el-Sawah receiving appropriate medical care; and neglect. For example: [109]

• Based on what Mr. el-Sawah told Dr. Xenakis, “the authorities at JTF-GTMO are obstructing appropriate medical testing and treatment. They have imposed unrealistic and harmful conditions for his movement from confinement to the medical clinic that prevent him from receiving appropriate medical care. These policies and practices violate the accepted procedures of medical care in a military setting.” [110]
• In September 2012, “a military otolaryngologist opined that Mr. el-Sawah’s symptoms were consistent with sleep apnea and that polysomnography would be required for diagnosis, but noted that Guantánamo does not have this capacity,” and so “treatment would be continuous positive airway pressure (CPAP).” According to the government, as of early September 2013, the CPAP machine had not yet arrived.
• As of September 3, 2013, Mr. el-Sawah had “not undergone pulmonary evaluation that would meet even minimum standards of care to address his progressive pulmonary disease.”
• “In addition to pulmonary disease, Mr. el-Sawah is at a very high risk for coronary artery disease (‘CAD’).” He describes “symptoms that are highly suspicious for cardiac disease given his multiple risk factors.” A military cardiologist who examined Mr. el-Sawah on December 12, 2012 concluded the same, “but noted that ‘patient’s weight exceeds any available means to test for CAD at GTMO.’ On June 4, 2013, a follow up cardiac consultation also concluded that Mr. el-Sawah’s ‘weight limits current testing at NH GTMO.’”  
• The government states that “Mr. el-Sawah has ‘refused’ an echocardiogram. However, an echocardiogram is of limited use for a patient of Mr. el-Sawah’s size and would not evaluate myocardial ischemia or determine if there is blockage in his arteries. In fact, Mr. el-Sawah underwent an echocardiogram in Guantánamo in 2007 … and his size prohibited the technicians from seeing anything useful to determine the status of his heart condition.”
• As of September 3, 2013, Dr. Crosby agreed with Guantánamo medical authorities’ “medication regimen to aggressively treat Mr. El-Sawah’s lipids, blood pressure, diabetes and anticoagulation for stroke prevention. However, the lack of diagnostic pursuits (despite recommendations by Guantánamo doctors) of his respiratory and cardiac conditions rises to the level of neglect.”
• With regard to Mr. el-Sawah’s obesity, the government stated that “‘Petitioner has been advised on numerous occasions to consume fewer calories and get regular exercise.’ This is not the standard of care for someone in Mr. el-Sawah’s weight range, which is stated to be 408 pounds.”
• “Given Mr. El-Sawah’s ongoing undiagnosed symptoms of chest pain and shortness of breath, encouraging regular exercise is reckless and could prove dangerous prior to further evaluation and treatment. Medical practice guidelines (including those published by the National Institutes of Health) dictate that a patient in Mr. El-Sawah’s current condition undergoes evaluation and treatment from a physician with expertise in the treatment of obesity.”

Abd al-Rahim al-Nashiri

Mr. Al-Nashiri is most likely irreversibly damaged by torture that was unusually cruel and designed to break him… Making matters worse, there is no present effort to treat the damage, and there appear to be efforts to block others from giving him appropriate clinical care. 
…
His deterioration is exacerbated by the lack of appropriate mental health treatment at Guantánamo. Based on my assessment and vast experience caring for survivors of torture, the physical and mental health care afforded to him is woefully inadequate to his medical needs. A significant factor in my opinion is that medical professionals, including mental health care providers, have apparently been directly or indirectly instructed not to inquire into the causes of Mr. Al-Nashiri’s mental distress, and as a consequence, he remains misdiagnosed and untreated.

Sondra Crosby, MD (10/14/2015) [111]

Abd al-Rahim al-Nashiri, a national of Saudi Arabia, was captured by local authorities in Dubai in October 2002. After being transferred to U.S. custody he was rendered to a series of CIA “black site” prisons before being sent, in 2006, to the detention center at Guantánamo Bay, Cuba. As of June 2019, Mr. al-Nashiri had been held captive there for 12 years and two months. 

During his time in CIA custody, Mr. al-Nashiri was tortured frequently and extensively. The abuses to which he was subjected include, but are not limited to: forced nudity, “stress positions,” being shackled to the ceiling or to walls for long periods in a freezing cold cell, waterboarding, “rectal feeding” (which is rape by object under the Uniform Code of Military Justice), mock execution with both a handgun and a power drill, threats to his family, and “forced bathing” with a stiff brush to abrade his skin. [112] In describing detainees at one of the black sites at which Mr. al-Nashiri was held, a CIA interrogator said “[‘they] literally looked like [dogs] that had been kenneled.’ When the doors to their cells were opened, ‘they cowered.’” [113]

In March of 2012, Dr. Sondra Crosby was appointed by the Defense Department as an expert in the field of internal medicine and the treatment of torture victims to conduct an evaluation of Mr. al-Nashiri’s physical and mental condition. After reviewing both classified and unclassified records and examining/observing Mr. al-Nashiri for approximately 30 hours, she concluded: “in my many years of experience treating torture victims from around the world, Mr. Al-Nashiri presents as one of the most severely traumatized individuals I have ever seen.” [114]

In early 2013, the government requested that a competency board evaluate Mr. al-Nashiri. “‘Two psychologists and one psychiatrist [from Walter Reed Military Medical Center] conducted interviews with [him] and reviewed numerous documents including summaries of his interrogations, medical assessment notes, and psychological assessment notes from 2002 through 2006.’ They concluded that he suffers from post-traumatic stress disorder (PTSD) and major depressive disorder.” [115] To that point, no Guantánamo doctor had ever reached the same conclusion.

In March of 2014, Dr. Crosby was called to testify as an expert witness at a hearing in Mr. al-Nashiri’s case arising out of her opinion that conditions of his confinement were triggering past traumatic experiences. Both her testimony and that of Mr. al-Nashiri’s then-most recent treating psychiatrist at Guantánamo (referred to as “Dr. 97”) revealed a number of serious concerns with the medical care he had been receiving.

Most glaring was an absence of a trauma history in any of Mr. al-Nashiri’s Guantánamo medical records. According to Dr. 97, who had been board certified in psychiatry for less than two years, “nowhere in Mr. Nashiri’s psychiatric records compiled at Guantánamo from 2006 to 2014 is there a detailed account of what … he went through prior to coming to Guantánamo[.]” [116] Dr. 97 testified that he had “suspicions,” but did not “know factually where [Mr. al-Nashiri] was or with whom he was.” Rather than ask Mr. al-Nashiri what happened to him, Dr. 97 said that he “assumed” Mr. al-Nashiri had serious trauma but did not “know factually the details.” [117]

Dr. Crosby confirmed that she had not seen a trauma history in any of the Guantánamo-generated records that she reviewed. And because of that omission, Mr. al-Nashiri “was not diagnosed correctly and is not receiving the proper treatment.” [118] Specifically, Dr. Crosby concluded that “Mr. [al-]Nashiri suffers from [PTSD] that has not been addressed.” [119]

In March of 2013, shortly after the competency board diagnosed PTSD, a Guantánamo doctor added that same diagnosis to Mr. al-Nashiri’s medical records for the first time. Various military mental health professionals carried forward the PTSD diagnosis throughout 2013, but there was never a foundation laid for it. In other words, there was no documentation that a health professional had ever conducted a diagnostic evaluation – actually gone through the diagnostic criteria – for PTSD. “You cannot diagnose somebody with post-traumatic stress disorder unless you have a trauma, a significant trauma,” Dr. Crosby explained, “and there’s no such history in the record.” [120]

For years, Guantánamo medical staff had been “treat[ing] the symptoms … without treating the cause.” [121] Not only was that approach ineffective, but also it harmed Mr. al-Nashiri in concrete ways. For example, at times Mr. al-Nashiri refused to see treatment providers because doing so required him to wear a “belly chain.” [122]Given that flashbacks (i.e. a past traumatic experience recurring vividly in the mind) are a common symptom of PTSD, if one understands what Mr. al-Nashiri suffered it is not difficult to appreciate his objection. That understanding would also facilitate identifying an appropriate solution.   

On March 12, 2014 – again, without taking Mr. al-Nashiri’s trauma history – Dr. 97 changed Mr. al-Nashiri’s conclusory PTSD diagnosis to one of narcissistic personality disorder. The change is troublesome both substantively and for its timing. With regard to the former, according to Dr. Crosby, Mr. al-Nashiri’s medical records are replete with red flags for PTSD: “He suffers from chronic pain. He suffers from anal-rectal complaints … Multiple other physical complaints, headaches, chest pain, joint pain, stomach pain. These are all symptoms that are highly prevalent in people who have suffered torture and [] have chronic PTSD.” She is confident in her assessment that Mr. al-Nashiri does not have narcissistic personality disorder.

As to timing, Dr. 97 changed the diagnosis in the few weeks after learning that Dr. Crosby would be testifying to medical concerns she had with Mr. al-Nashiri’s treatment, and after discussing with the prosecution and the senior medical officer that she would be evaluating Mr. al-Nashiri using the Istanbul Protocol – the international standard for the investigation and documentation of torture – with which Dr. 97 was not previously familiar.

Endnotes

[1] As of June 2019, military commission prosecutors were pursuing charges against three additional detainees but the office overseeing the commissions—the Convening Authority—had not yet approved the charges.

[2] Carol Rosenberg, Guantanamo Bay as Nursing Home: Military Envisions Hospice Care as Terrorism Suspects Age, NY Times, April 27, 2019, available at https://www.nytimes.com/2019/04/27/us/politics/guantanamo-bay-aging-terrorism-suspects-medical-care.html.

[3] Posture Statement of General John F. Kelly, United States Marine Corps Commander, United States Southern Command, Before the 113th Congress House Armed Services Committee at 23-24, March 20, 2013, available at http://www.au.af.mil/au/awc/awcgate/usmc/posture_usmc_20mar2013.pdf.

[4] Id.

[5] This includes, but is not limited to, detainees who were tortured or otherwise abused as part of the CIA’s former rendition, detention and interrogation program.

[6] Laurel Fletcher and Eric Stover, Guantanamo and its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Former Detainees at 52 (Nov. 2008), available at https://www.law.berkeley.edu/files/IHRLC/Guantanamo_and_Its_Aftermath.pdf.

[7] US v. Hadi al-Iraqi, AE099RR at 2-3.

[8] Boumediene v. Bush, 553 U.S. 723 (2008).

[9] Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Al-Alwi v. Trump, No. 18–740 (Sup. Ct. June 10, 2019) (Denying pet. for writ of cert., statement of Breyer, J.)

[10] Ali v. Trump, No. 17-5067 (D.C. Cir. Aug. 7, 2018) (Denying hearing en banc).

[11] Kathleen T. Rhem, Guantanamo Detainees Receiving ‘First-Rate’ Medical Care, U.S. Department of Defense News, Feb. 18, 2005, available at https://archive.defense.gov/news/newsarticle.aspx?id=25852.

[12] U.S. Army Regulation 190–8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, available at https://info.publicintelligence.net/USArmy-Detainees.pdf.

[13]Id. at 3-4(e).

[14]Id. at 6-6(c).

[15]  See, e.g., David Fathi, Director, ACLU National Prison Project, Victory! UN Crime Commission Approves Mandela Rules on Treatment of Prisoners, available at https://www.aclu.org/blog/prisoners-rights/solitary-confinement/victory-un-crime-commission-approves-mandela-rules (“One notable feature of this year’s Crime Commission was the positive role played by the United States. The U.S. delegation strongly supported adopting the rules and naming them in honor of Nelson Mandela, whom it called “one of the greatest defenders of human rights and dignity in recent history.” It resisted attempts to reopen the text of the Mandela Rules that had been agreed to in Cape Town earlier this year, and it fought back against efforts to insert language that would allow countries to disregard certain rules for cultural and religious reasons.”); ACLU Statement at the High Level Presentation of the Nelson Mandela Rules UN General Assembly, New York, October 7, 2015 (“We also wish to specifically thank the U.S. government for championing the Mandela Rules and making commitments to implement them at home and abroad.”), available at https://www.aclu.org/other/aclu-statement-high-level-presentation-nelson-mandela-rules; Dan Sicorsky, The Nelson Mandela Rules: Honoring a Prisoner Turned World Leader,DIPNOTE, U.S. Department of State Official Blog, July 18, 2017, available athttps://blogs.state.gov/stories/2017/07/18/en/nelson-mandela-rules-honoring-prisoner-turned-world-leader.

[16] United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), General Assembly resolution A/RES/70/175 (17 December 2015), available at https://undocs.org/A/RES/70/175.

[17] Numerous United Nations Rapporteurs have confirmed that the Mandela Rules are applicable at Guantanamo. See, e.g., “It’s not just about closing Guantánamo, but also ensuring accountability, UN rights experts say,” United Nations Office of the High Commissioner for Human Rights News, Geneva (26 February 2016) (“‘Any detainees must be held under the conditions that respect international standards,’ they stated, ‘including those under international humanitarian law and the Mandela Rules – the Revised UN Standard Minimum Rules for the Treatment of Prisoners (SMRs).’ The experts: Mr. Ben Emmerson, UN Special Rapporteur on human rights and counterterrorism; Mr. Juan E. Méndez, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Ms. Mónica Pinto, UN Special Rapporteur on independence of the judiciary; Mr. Seong-Phil Hong, Chair-Rapporteur of the UN Working Group on Arbitrary Detention; Ms. Houria Es-Slami, Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances; and Mr. Alfred De Zayas, UN Independent Expert on the promotion of a democratic and equitable international order.”), available at  https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17097&LangID=E.

[18] Brief for the Center for Victims of Torture as Amicus Curiae at 7-10, Al Bihani et al. v. Trump, 09-cv-00745-RCL (D.D.C., January 24, 2018) (“CVT Guantanamo Amicus Brief”), available at https://www.cvt.org/sites/default/files/Final%20Amicus%20Brief-4.Jan%202018.pdf; Physicians for Human Rights, Punishment Before Justice: Indefinite Detention in the U.S. 2 (2011) (“Punishment Before Justice”), available at https://s3.amazonaws.com/PHR_Reports/indefinite-detention-june2011.pdf; Physicians for Human Rights, Broken Laws, Broken Lives: Medical Evidence of Torture by U.S. Personnel and Its Impact 75 (2008), available at http://physiciansforhumanrights.org/library/reports/broken-laws-torture-report-2008.html.

[19] Camp Delta Standard Operating Procedures, Joint Task Force – Guantanamo (JTF-GTMO), Guantanamo Bay, Cuba, March 1, 2004 at 19.7, available at http://hrlibrary.umn.edu/OathBetrayed/sop_2004.pdf. It is unclear whether this SOP remains in effect.

[20] Id. at 19.6.

[21] Emergency Motion for Preliminary Injunction for Proper Medical Treatment, Paracha v. Bush, No. 04-CV-2022 (D.D.C. Nov. 22, 2006) (affidavit of Zachary Katznelson).

[22] Dr. [REDACTED], Evaluation and opinion regarding Ghaleb Nasser Al-Bihani, April 8, 2014 at 3-4 (“Al-Bihani PRB Eval.”) available at https://www.prs.mil/Portals/60/Documents/ISN128/140408_ISN128_U_DETAINEE’S_WRITTEN_SUBMISSION_PUBLIC.pdf?ver=2014-07-03-120331-410.  

[23] Expert Report of Stephen N. Xenakis, MD, Dhiab v. Obama, Civ. No. 05-1457 (GK) (D.D.C. Sept. 15, 2014) (“Xenakis Dhiab Eval.”).

[24] See Mr. al-Tamir’s case study infra.

[25] US v. Hadi al-Iraqi, AE099OO, Attachment B (Decl. of Senior Medical Officer) at ¶ 9; US v. Hadi al-Iraqi, AE099SS, Attachment B (Del. of Senior Medical Officer) at ¶ 8; US v. Hadi al-Iraqi, AE099QQ, Attachment B (Decl. of Senior Medical Officer) at ¶ 9.

[26] US v. Hadi al-Iraqi, 13 Feb transcript at 1940-41, 1935.

[27] US v. Hadi al-Iraqi, AE099RR at 2-3.

[28] Decl. of Dr. Sondra S. Crosby in support of Petitioner Tariq Ba Odah’s Motion for Habeas Relief, Ba Odah v. Obama, Civil Action No. 06-1668 (TFH) (D.D.C. June 22, 2015) (“Crosby Ba Odah Decl.”) (“A trust-based doctor-patient relationship is of paramount importance for treatment and recovery.”); Reply in Support of Petitioner’s Emergency Motion for an Independent Medical Evaluation and Medical Records, Ex. 1, Supp. Decl. of Dr. Jess Ghannam, dated Sept. 26, 2017, at ¶ 6, Al Hajj v. Trump, Case No. 09-cv-745 (RCL) (D.D.C. Sept. 27, 2017) (“Ghannam Supp. Al Hajj Decl.”) (“[T]rust in one’s doctor is a necessary precondition to being forthcoming with information and consenting to care, which are in turn essential to making an accurate diagnosis and prognosis and providing effective treatment.”).

[29] Ghannam Supp. Al Hajj Decl., supra note 28, at ¶ 6.

[30] Dr. Ghannam’s experience – and that of other independent medical experts (including the International Committee of the Red Cross) – is that “it is problematic, if not impossible, for the standard doctor-patient relationship to develop at Guantanamo…” Ghannam Supp. Al Hajj Decl., supra note 28, at ¶ 6; See also, e.g., Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantánamo, New York Times (Nov. 30, 2004), available athttp://www.nytimes.com/2004/11/30/politics/30gitmo.html?pagewanted=1&_r=0 (“The [ICRC] report said that such ‘apparent integration of access to medical care within the system of coercion’ meant that inmates were not cooperating with doctors. Inmates learn from their interrogators that they have knowledge of their medical histories and the result is that the prisoners no longer trust the doctors.”).

[31] Senate Armed Services Committee, Inquiry Into the Treatment of Detainees in U.S. Custody (2008) at xx, xiii, 103-104, 132-145, available at https://www.armed-services.senate.gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf (“SASC Report”).

[32] See, e.g., id. at 38, 39; Physicians for Human Rights, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, August 1, 2007, available at https://phr.org/resources/leave-no-marks/; Report of The Constitution Project Task Force on Detainee Treatment (2013) at Chapter 6: The Role of Medical Professionals in Detention and Interrogation Operations, available at https://detaineetaskforce.org/pdf/Chapter-6_Role-of-Medical-Professionals.pdf.

[33] Id.

[34] Review of Department of Defense Detention Operations and Detainee Interrogations (“The Church Report”) (March 7, 2005) at 140 (“The April 2003 GTMO Policy specified conditions for the use of these techniques, including, ‘The detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination’”); Detention Medical Interface with Behavioral Science Consultation Team at 1 (February 15, 2005) (“BSCT staff may check directly with Detention Medical clinical staff to confirm whether or not a detainee is medically fit for interrogation activities.”). 

[35] Assessment of Detainee Medical Operations for OEF, GTMO, and OIF at 18-2, Office of the Surgeon General (April 15, 2005) (“Medics randomly observe interrogations and have the ability to halt an interrogation at any point they deem necessary.”).

[36]  Detention Medical Interface with Behavioral Science Consultation Team at 1 (February 15, 2005) (“The Behavioral Science Consultation Team (BSCT) is NOT part of the Joint Task Force Guantanamo (JTF-GTMO), Joint Medical Group (JMG). They are a component of the Joint Interrogation Group (JIG) that supports the Interrogation Control Element (ICE) and Joint Detention Operations Group (JDOG).”).

[37] Sheri Fink, Where Even Nightmares Are Classified: Psychiatric Care at Guantanamo, NY Times, Nov. 12, 2016, available at https://www.nytimes.com/2016/11/13/world/guantanamo-bay-doctors-abuse.html (“If you complain about your weak point to a doctor,” one former detainee explained, “they told that to the interrogators.”).

[38] Al-Bihani PRB Eval., supra note 22.

[39] Dr. Emily Keram, Evaluation of Mohammed al Qahtani, June 5, 2016 (“al Qahtani PRB Eval.”), available at https://www.prs.mil/Portals/60/Documents/ISN063/160606_U_ISN063_DETAINEE_SUBMISSION_PUBLIC2.pdf.

[40] Petitioner’s Motion for a Status Conference, Al Hajj v. Trump, Case No. 09-cv-745 (RCL) (D.D.C. October 26, 2018).

[41] Carol Rosenberg, For aging Guantanamo captives, a cardiac care lab, Miami Herald, Sept. 28, 2012, available at https://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article1943141.html.

[42] Respondent’s Opposition to Petitioner’s Motion to Reinstate His Habeas Petition and for Judgment on the Record, Ba Odah v. Obama, Civil Action No. 06-1668 (TFH) (D.D.C. Aug. 14, 2015), Ex. 1, Declaration of Commander [REDACTED] dated July 30, 2015 at ¶ 20, 16.

[43] Supplemental Decl. of Dr. Jess Ghannam in Further Support of Petitioner Tariq Ba Odah’s Motion for Habeas Relief at ¶ 3, Ba Odah v. Obama, Civil Action No. 06-1668 (TFH) (D.D.C. Sept. 9, 2015).

[44] Id. at ¶ 15.

[45] Supplemental Decl. of Dr. Sondra S. Crosby in support of Petitioner Tariq Ba Odah’s Motion for Habeas Relief at ¶ 18, Ba Odah v. Obama, Civil Action No. 06-1668 (TFH) (D.D.C. Sept. 10, 2015) (“Crosby Supp. Ba Odah Decl.”).

[46] Id. at ¶2.

[47] Supplemental Decl. of Dr. Rami Bailony in support of Petitioner Tariq Ba Odah’s Motion for Habeas Relief at ¶¶ 5-6, Ba Odah v. Obama, Civil Action No. 06-1668 (TFH) (D.D.C. Sept. 9, 2015).

[48] Petitioner’s Emergency Motion for an Independent Medical Evaluation and Medical Records, Al Hajj v. Trump, Case No. 09-cv-745 (RCL) (D.D.C. Sept. 6, 2017), Ex. C, Decl. of Dr. Jess Ghannam, dated Aug. 29, 2017 (“Ghannam Al Hajj Decl.”) at ¶ 6; Al-Bihani PRB Eval., supra note 22, at 4; al Qahtani PRB Eval., supra note 39, at 9. 

[49] Al-Bihani PRB Eval., supra note 22, at 4.

[50] Vincent Iacopino, MD, PHD and Brigadier General (Ret) Stephen N. Xenakis, MD, Neglect of medical evidence of torture in Guantánamo Bay: a case series, PLOS Medicine, April 26, 2011.

[51] CVT Guantanamo Amicus Brief, supra note 18, at 18 (citing Fink, supra note 37).

[52] Declaration of Dr. Sondra S. Crosby (Oct. 24, 2015) at ¶ 12, available at https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/USA/INT_CAT_ICS_USA_24558_O.pdf (“Crosby Al-Nashiri Decl.”).

[53] Ghannam Supp. Al Hajj Decl., supra note 28, at ¶ 11; see also The Health Insurance Portability and Accountability Act of 1996, Public Law 104-91, 45 CFR § 164.524 (Access of Individuals to Protected Health Information); United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), General Assembly resolution A/RES/70/175 (17 December 2015), Rules 9, 26, and 57, available at https://undocs.org/A/RES/70/175.

[54] Petitioner’s Emergency Motion for Medical Care, Attachment 2, Decl. of Sean M. Gleason dated August 21, 2013, Alsawam v. Obama, Case No. 05-cv-1244 (CKK) (D.D.C. Aug. 21, 2013) (“Gleason Decl.”).

[55] Government’s Opposition to Petitioner’s Emergency Motion for an Independent Medical Evaluation and Medical Records at 2, Al Hajj v. Trump, Case No. 09-cv-745 (RCL) (D.D.C. Nov. 27, 2017).

[56] Dr. Jess Ghannam, evaluation of Mr. Mustafa Muhammad Abu Faraj al-Libi, March 12, 2016 (“Ghannam al-Libi Eval.”).

[57]See, e.g., Joe Margulies, Gina Haspel, Trump’s Pick for CIA Director, Ran the Prison Where My Client Was Tortured. I Have Questions for Her, Time.com, March 14, 2018, available at http://time.com/5199408/abu-zubaydah-lawyer-gina-haspel/ (“Because of what he was made to endure, Abu Zubaydah suffers from frequent seizures, the origin of which cannot be determined. He is tormented by sounds that others do not hear, and cannot remember simple things that others cannot forget. Because his condition is classified, there is much about his welfare that the United States will not let me say. They have authorized me to report, however, that I am “very concerned” about his health.”); Jessica Schulberg, Pentagon Accused Of Denying Medical Care To Torture Victim And Alleged 9/11 Plotter, Huffington Post, Feb. 11, 2016, available at https://www.huffpost.com/entry/mustafa-al-hawsawi-torture-guantanamo-medical-treatment_n_56bcec2de4b0c3c55050885a (“Further complicating al Hawsawi’s medical treatment is the classification of much of his medical records. Navy Cmdr. Walter Ruiz, who represents al Hawsawi, says that the records his team does get access to are incomplete, provided on a sixth-month delay and are partially redacted.”).

[58]Executive Order 13526 § 1.1.

[59]To the extent that classification of medical records is about identifying government personnel and the government maintains that such redactions are necessary, it should not be difficult to redact those identifiers in a timely fashion.

[60]See, e.g., CVT Guantanamo Amicus Brief, supra note 18, at 7-10; Punishment Before Justice, supra note 18, at 2.

[61]See, e.g., Petitioner’s Notice of Filing of Expert Report of Dr. Sondra Crosby, MD, Dhiab v. Obama, Civ. No. 05-1457 (GK) (D.D.C. Sept. 9, 2014) (“In addition, based on my interview and review of the medical record, the medical staff is not appropriately equipped to understand or treat the cultural aspects of Mr. Dhiab’s medical condition, causing further alienation.”); al Qahtani PRB Eval., supra note 39.

[62] CVT Guantanamo Amicus Brief, supra note 18, at 11-19 (citing CVT’s Director of Client Services, Dr. Andrea Northwood).

[63]See, e.g., case study of Nashwan al-Tamir, infra.

[64] Ghannam Al–Hajj Decl., supra note 48, at ¶ 7

[65]See, e.g., case study of Tarek El Sawah, infra

[66] Xenakis Dhiab Eval., supra note 23.

[67]See, e.g., Letter from Sondra S. Crosby, MD and Brigadier General (Ret) Stephen N. Xenakis, MD, to Members of the United States Senate, Nov. 19, 2013, available at https://constitutionproject.org/wp-content/uploads/2013/11/Crosby-Xenakis-Medical-Transfer-Letter.pdf (“Adnan Farhan Abdul Latif died at Guantanamo by alleged suicide in September 2012, years after he had been cleared for transfer. Mr. Latif was seriously mentally ill and suffered from traumatic brain injury. A report by U.S. Southern Command cited lapses in procedures as contributory to his death, and depicts woefully substandard medical care. Mr. Latif required tertiary neuropsychiatric care that was not available at Guantanamo, and it is possible he would be alive if he had had access to the proper care); see also case studies of Nashwan al-Tamir and Tarek El Sawah, infra; CVT Guantanamo Amicus Brief, supra note 18, at 7-10.

[68] Amended Petition for Habeas Corpus, al-Iraqi v. Trump, Case No. 17-cv-1928 (EGS) (D.D.C. Nov. 1, 2017) (“al-Tamir Amended Habeas”), Ex. G (Letter from Homer Venters, MD, MS and Vincent Iacopino, MD, PHD, to the Honorable James N. Mattis, Secretary of Defense, September 8, 2017) (“Venters, Iacopino letter to SECDEF Mattis”).

[69] Reply to Respondent’s Memorandum in Opposition to Petitioner’s Emergency Motion for Medical Care, Attachment 5, Decl. of Sondra S. Crosby, MD, dated Sept. 3, 2013, at ¶ 10, Alsawam v. Obama, Case No. 05-cv-1244 (CKK) (D.D.C. Sept. 3, 2013) (“Crosby El Sawah Decl.”).

[70] Xenakis Dhiab Eval., supra note 23, at 5. 

[71] Brigadier General (Ret) Stephen Xenakis, MD, and Vincent Iacopino, MD, PhD, Suffering Ex-Guantánamo Detainees Deserve Medical Care and Support, PHR Blog, Oct. 13, 2016, available at https://phr.org/resources/suffering-ex-guantnamo-detainees-deserve-medical-care-and-support/.

[72] Carol Rosenberg, ‘Sodomized’ Guantánamo captive to undergo rectal surgery, Miami Herald, Oct. 11, 2016, available at https://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article107451907.html.

[73]Id.

[74] It seems that JTF-GTMO brings in outside specialists on a rotational basis, but they are military doctors (where trust is an issue), they may or may not have expertise in an area of medicine for which a detainee requires diagnosis or treatment, and they may not be on a rotational schedule that corresponds to timely medical care.

[75]Memorandum for CDR Patrick Flor, JAGC, USN, OCDC from Michael I. Quin, Legal Advisor to the Convening Authority for Military Commissions, dated February 11, 2014.

[76]For example, Mr. Al–Hajj filed a motion for an independent medical evaluation on September 6, 2017. As of June 2019, the Court hhad not yet ruled on the motion. See Petitioner’s Emergency Motion for an Independent Medical Evaluation and Medical Records, Al–Hajj v. Trump, Case No. 09-cv-745 (RCL) (D.D.C. Sept. 6, 2017).

[77] For additional details, see case ystudy of Nashwan al-Tamir, infra.

[78]Id.

[79]

[80]

[81]

[82]

[83]

[84]

[85]

[86]

[87]

[88]

[89]

[90]

[91]

[92]

[93]

[94]

[95]

[96]

[97]

[98]

[99]

[100]

[101]

[102]

[103]

[104]

[105]

[106]

[107]

[108]

[109]

[110]

[111]

[112]

[113]

[114]

[115]

[116]

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Twenty years ago, Physicians for Human Rights (PHR) led the development of the Istanbul Protocol, which established United Nations standards on the state obligation to investigate torture and other cruel, inhuman, and degrading treatment or punishment. The Istanbul Protocol outlines international legal standards on protection against torture and sets out specific principles and guidelines on how effective legal and clinical investigations into allegations of torture and ill treatment should be conducted.

The Istanbul Protocol became an official United Nations document in 1999 and has been recognized by a number of human rights bodies, including the UN General Assembly, the UN Commission on Human Rights, the UN Committee Against Torture, the UN Special Rapporteur on Torture, and regional human rights bodies. In his annual report to the UN General Assembly in October 2014, the UN Special Rapporteur on Torture, Juan Méndez, recognized the critical role of forensic and medical sciences in the investigation and prevention of torture and other ill-treatment. “The Istanbul Protocol serves as a standard for medical evidence given by experts, for benchmarking the effectiveness of the evidence, and for establishing redress for victims,” he said. “Quality forensic reports are revolutionizing investigations of torture.” Such recognition represents a significant factor in the widespread use and acceptance of the Istanbul Protocol and its standards in medical-legal and other contexts worldwide.

The Istanbul Protocol has been routinely used by state and non-state actors to guide their investigations into torture and ill-treatment. The Protocol is now translated into more than 20 languages, and many countries as well as intergovernmental bodies have taken steps to incorporate it into their legal or policy frameworks.

Torture and other forms of ill-treatment are heinous crimes committed by state officials that are often concealed to effectively preclude justice, accountability, and redress. The Istanbul Protocol is a tool that empowers civil society to prevent torture and ill-treatment, hold perpetrators accountable, and afford victims the redress and rehabilitation that they deserve. The strength of the Istanbul Protocol lies in the global consensus that it represents and the power of the medical-legal evidence that it employs.

During the past two years, representatives of four civil society organizations (Physicians for Human Rights, the International Rehabilitation Council for Torture Victims, the Human Rights Foundation of Turkey, and REDRESS) and the four principal UN anti-torture bodies (the UN Committee against Torture, the UN Subcommittee for the Prevention of Torture, the UN Special Rapporteur on Torture, and the UN Voluntary Fund for Victims of Torture) have led a large-scale project to strengthen the Istanbul Protocol involving more than 180 experts in 51 countries. The 2020 edition of the Protocol will include updates and clarifications that address the role of health professionals in different documentation contexts and provide guidance to states on implementation of the Istanbul Protocol.

The 2020 edition of the Istanbul Protocol will include updates and clarifications that address the role of health professionals in different documentation contexts and provide guidance to states on implementation of the Istanbul Protocol.

On this solemn day of support for victims of torture, the UN High Commissioner for Human Rights, Michelle Bachelet, has announced her unequivocal support for the Istanbul Protocol and the plan to publish an updated and strengthened 2020 edition of the document.

We at PHR are proud to be among the many participants in this extraordinary effort to take critical action in support of victims of torture to ensure the most fundamental right of all people – to live in a world without torture.

Photo by Robert Lisak

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Executive Summary

In August 2017, Myanmar security forces and Rakhine Buddhist civilians attacked hundreds of villages in northern Rakhine state, massacring thousands of Rohingya Muslim residents and burning their homes to the ground.[1] As of January 2019, that targeted violence and ongoing abuses had prompted approximately 740,000 Rohingya to flee to Bangladesh, where they remain.[2] Physicians for Human Rights (PHR) has collected extensive medical evidence of the human rights violations committed against the Rohingya in those attacks. A PHR report published in July 2018 presented clear medical evidence to corroborate survivors’ accounts of how shootings, beatings, stabbings, and other forms of violence inflicted upon the Rohingya in the village of Chut Pyin made it an emblematic example of the targeted, systematic violence that unfolded in hundreds of other villages across northern Rakhine state.[3]

This supplemental report focuses on a separate, underreported outcome of the August 2017 attacks on the Rohingya: survivors who suffered physical impairments from their wounds that will potentially become long-term disabilities.[4] These disabilities will hinder these survivors’ ease and freedom of movement, limit their ability to seek gainful employment, and otherwise obstruct their ability to live productive, pain-free lives. The plight of these disabled Rohingya survivors highlights how the ruthless violence that the Myanmar security forces and others inflicted on the Rohingya in August 2017 will have a decades-long, painful, life-altering legacy for potentially thousands of survivors and their families.

PHR approached 120 survivors living in refugee camps in Bangladesh to request interviews and interviewed a total of 114 survivors who gave their consent to be interviewed. 90 survivors out of that pool of 114 reported physical injuries resulting from the violence and consented to and subsequently underwent clinical evaluations by PHR medical partners. In total, 43 of these injured survivors were left with long-term disabilities as a result of violence they experienced in or around August 2017.

The vast majority of Rohingya who were disabled as a result of that targeted violence were gunned down as they fled attackers. Many of the bullet wounds have resulted in permanent neurological impairment that limits limb function and causes severe and persistent pain: both can make simple tasks like walking, grasping a pot, or lifting a bag of rice extremely painful or impossible. Other survivors suffered shrapnel wounds from grenades or were injured by landmines laid in fields surrounding Rohingya villages in an apparently deliberate strategy to inflict maximum harm on Rohingya fleeing attack. Some Rohingya survivors who were unable to flee were reportedly seized by Myanmar security forces and brutally beaten, kicked, stabbed, raped, and killed.

The Rohingya profiled in this report are the survivors: unlike the estimated 10,000 killed in the attacks,[5] these people escaped death by being rescued by relatives or by taking refuge in surrounding forests or nearby villages before making the long overland journey to Bangladesh. In many cases documented by PHR, survivors said they had heard that it was unsafe to seek medical treatment inside Myanmar because doctors would allegedly report injured Rohingya to Myanmar authorities. This fear, combined with a longstanding de facto policy of denying health care services to Rohingya meant that survivors often resorted to traditional natural remedies for wound treatment and pain relief during the days- or weeks-long trek to refuge in Bangladesh. PHR clinicians have concluded that this lack of adequate medical attention often exacerbated already severe wounds: these injuries were often worsened by delayed surgery, while infections led to amputations that earlier treatment might have prevented.

The vast majority of Rohingya who were disabled … were gunned down as they fled attackers. Many of the bullet wounds have resulted in permanent neurological impairment that limits limb function and causes severe and persistent pain: both can make simple tasks like walking, grasping a pot, or lifting a bag of rice extremely painful or impossible.

PHR asserts that the attacks by Myanmar security forces should be investigated as crimes against humanity and supports recommendations by a United Nations (UN) fact-finding mission to refer Myanmar to the International Criminal Court or an ad hoc criminal tribunal for accountability for those abuses. PHR is convinced that, by inflicting indiscriminate injury and thus long-term disability on many Rohingya, Myanmar security forces also violated the right to health and the right to work of their Rohingya victims. Myanmar now has forward-looking redress obligations toward Rohingya who were disabled by the 2017 attacks, including guarantees of financial compensation for those who can no longer work; free and comprehensive access to medical services and education; and long-term rehabilitation services for disabled Rohingya if and when the Myanmar government and the international community can guarantee their safe and voluntary return to Myanmar.[6][7]

Muriam’s Story

Five-year-old Muriam Khathu (Profile 5) was at home with her parents and grandparents when soldiers began approaching their village, firing rifles and throwing and firing grenades at some of the Rohingya houses. The family ran out of the house. Soldiers shot and killed Muriam’s father, while several members of Myanmar’s security forces grabbed the 40-pound Muriam and threw her against a wall. They began stomping on her and kicking her with their combat boots, ignoring the pleas of Muriam’s mother and grandparents that they stop.

When Muriam’s assailants moved on, Muriam’s family took shelter in the forest near their village before setting out on the long journey to Bangladesh. They carried Muriam on a makeshift stretcher, but she still cried out in pain every time she was moved. Once in Bangladesh, Muriam was sent to a hospital, but the damage could not be undone: she had suffered a pelvic fracture and serious neurological injury as a result of the attack. She could move her legs only slightly and was unable to walk or bear any weight on them. Months after the attack, she said she still felt pain whenever she moved. According to a clinical examination carried out by PHR medical partners on the ground, the presence of ongoing pain and Muriam’s inability to walk more than two months after the injury indicated a low likelihood that Muriam would ever be able to walk or move without pain.

Members of Myanmar’s security forces grabbed the 40-pound Muriam and threw her against a wall. They began stomping on her and kicking her with their combat boots, ignoring the pleas of Muriam’s mother and grandparents that they stop.… [Today,] Muriam is unable to walk, play, or even sit up.

If Muriam and her family return to northern Rakhine state, many difficulties await. The rural region faces severe food insecurity and its residents are highly dependent on subsistence farming. Muriam will most likely be limited in her ability to work or do the physically demanding chores intrinsic to life in rural Rakhine State. Muriam is unable to play, walk, or even sit up. Her mother is responsible for basic personal hygiene tasks such as helping her use the toilet. Muriam will most likely have extremely limited medical support if she returns to Myanmar: the Rohingya have faced state-sponsored discrimination in accessing health services for years.[8] Even if Myanmar were to end such discriminatory practices, there are fewer than 1,400 hospital beds in Rakhine state to service a population of more than three million people,[9] imposing extremely limited access to services. The lack of adequate support services for people with disabilities in Rakhine state will likely place severe burdens on their caregiver family members. Longtime caregivers of people with disabilities are at high risk of poor health outcomes themselves, including depression and shortened life-expectancy due to the stresses imposed by caregiving.[10]

For those like Muriam whose interviews are documented in this report, the violence directed at them over a period of days in 2017 has resulted in the high likelihood of a lifetime of chronic pain and disability.

Introduction

For centuries, Muslim Rohingya people have lived in Rakhine state on the western coast of Myanmar, a predominantly Buddhist country. Since the Myanmar military junta stripped the Rohingya of citizenship in 1982, the Rohingya have been stateless and subjected to decades of human rights violations, including denial of the right to health and education, limited political participation, restrictions on freedom of movement, forced displacement, arbitrary detentions and killings, forced labor, and trafficking, among other abuses.[11]

Following attacks on Myanmar security forces by the insurgent Arakan Rohingya Salvation Army in October 2016 and again in August 2017, the Myanmar military unleashed a wave of violence on Rohingya communities.[12] PHR’s July 2018 report, “The Chut Pyin Massacre: Forensic Evidence of Violence Against the Rohingya in Myanmar,”[13] detailed the brutal attacks that took place in one village. As the violence was widespread and systematic throughout Rakhine state, Physicians for Human Rights (PHR) conducted a sub-analysis: in a survey of some 604 Rohingya hamlet leaders, 534 (88 percent) reported violence against their hamlets, with more than half of the 534 reporting beatings and shootings, and almost a third reporting rapes or sexual assault.[14] The Myanmar military’s ruthless attacks on Rohingya civilians from August 2017 onward has driven some 740,000 people into neighboring Bangladesh.[15] Evidence gathered by PHR supports the conclusions of a United Nations fact-finding mission, which found that actions by Myanmar security forces indicated “genocidal intent.”[16][17]

To gather the data used in this report, PHR conducted four visits to Bangladesh after October 2017 to interview and carry out clinical examinations of Rohingya survivors of these attacks. PHR interviewed a total of 114 survivors. Of those, 24 people were witnesses who had sustained no injuries and were therefore not given a forensic exam. In total, 90 survivors who had suffered injuries underwent a PHR clinical evaluation consisting of both an interview and a physical exam. Of these survivors, 43 were left with long-term disabilities – defined as physical impairment, activity limitations, and restrictions in participating in activities of daily life – as a result of the attacks.[18] These survivors were from 19 different villages throughout northern Rakhine state.

In September 2018, the UN Fact-Finding Mission (FFM) published a 444-page report about human rights abuses against the Rohingya.[19] The mission’s report concluded that there was evidence warranting criminal prosecution for crimes against humanity, war crimes, and genocide.[20] The report names top military officials as targets for investigation and prosecution and also blames civilian authorities for “spreading false narratives, denying the wrongdoing of the (security forces), blocking independent investigations … and overseeing the destruction of evidence.”[21] The Myanmar government rejected the report’s findings as “false allegations.”[22]

The FFM’s findings were echoed in the results of the first-ever quantitative survey, carried out by PHR, of Rohingya leaders displaced to refugee camps in Bangladesh. The analysis of the survey’s results was published in a March 2019 peer-reviewed Lancet Planetary Health article, which concluded that “in 2017, the Rohingya ethnic minority population of Northern Rakhine State were the targets of a campaign of widespread and systematic violence, including violence by state forces.”[23]

To date, Myanmar authorities have failed to conduct impartial and independent investigations into these events and have not fully cooperated with the UN and other bodies seeking to do so. A four-member commission formed by the Myanmar government to investigate the alleged crimes announced in December 2018 that it had found no evidence to corroborate the UN’s accusations,[24] an assertion roundly rejected by human rights groups.[25] The UN Security Council is currently negotiating a draft resolution to address the Rohingya refugee crisis which would include the option of imposing sanctions on the Myanmar government, though news reports suggest that Russia and China have boycotted that initiative.[26]

PHR is publishing this report based on testimonies and clinical evaluations of individual cases to contribute to documentation and investigation efforts, so that those who perpetrated these crimes can be held accountable and that survivors may be given redress. While this report focuses on the rights of Rohingya survivors disabled in the violence of August 2017 to redress, and, specifically, to access health care and rehabilitative services, this does not discount the need for all people with disabilities in Myanmar to access those same services, especially those who face discriminatory obstacles in accessing health care. Likewise, this report does not discount the rights to reparations of Rohingya who were not injured in the attacks as well as the many survivors who lost loved ones (or entire families), property, and, thus, their economic viability.

Methodology

Field Investigations

Physicians for Human Rights (PHR) conducted four visits to Rohingya refugee camps (Balukhali, Jamtoli, Kutupalong, and Thangkali) near Cox’s Bazar, Bangladesh between October 2017 and July 2018. During an initial visit in October 2017, the PHR clinical team established contact with local health providers working in camps in the area and assessed the need to collect scientific and medical evidence in the form of clinical evaluations. In December 2017, the PHR medical team returned to conduct interviews and clinical examinations of survivors from dozens of villages across Rakhine state, from where most Rohingya have fled since the August 2017 attacks. PHR carried out a second field investigation in Bangladesh in March 2018, and a third in July 2018. PHR then did secondary data extraction to identify evaluations of survivors with disabilities and then conducted an analysis of those particular cases. This report follows the publication of a larger project whose methods and main findings have been previously described in the March 2019 peer-reviewed Lancet Planetary Health article, “Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh.”[27]

Interviews and Clinical Examinations

The findings of this report are based on two-part assessments – interviews and clinical examinations – conducted in private locations through a Rohingya language interpreter. The PHR research team collaborated with local organizations, health facilities, and community informants utilizing purposive and snowball sampling to identify survivors with physical injuries from the violence. The PHR research team also interviewed other key informants, including community leaders, medical professionals, activists, lawyers, journalists, and others. All survivors interviewed were adults or accompanied minors who self-identified as Rohingya and who were in surrounding hospitals or lived in refugee camps in the Ukhiya and Teknaf areas south of Cox’s Bazar. PHR excluded anyone who arrived before August 27, 2017 and/or was unable to provide consent.

The PHR team interviewed and evaluated 114 survivors. Twenty-four people were witnesses who had sustained no injuries and who therefore did not undergo a clinical examination. Ninety survivors who had suffered injuries underwent a PHR clinical evaluation consisting of both an interview and a physical exam. Each of these assessments began with a semi-structured interview to collect information on the survivor’s demographics and their personal experiences, as well as when they first noted any disturbances in daily life in late August 2017 and how they arrived in their current location. Questions focused on the survivor’s own experiences and on instances in which they witnessed abuse.

PHR then conducted physical examinations to identify injuries, scars, wounds, and disabilities based on the principles and guidelines of the “Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” commonly known as the Istanbul Protocol. The Protocol is the international standard to assess, investigate, and report alleged instances of torture and other cruel, inhuman, and degrading treatment.[28] This study focused on physical forensic examinations of the area of reported injuries; available diagnostic images, laboratory tests, and other medical records were also reviewed.

Data Extraction and Analysis

PHR investigators attempted to assess disability according to the severity of the impairment and the likelihood that it would constitute a long-lasting impediment to a survivor’s ability to work, do domestic chores, and otherwise live a fully-functional life.

To identify persons with disabilities, a PHR consultant reviewed the 90 evaluations of survivors with injuries. We defined disability as “a restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being as defined by the World Health Organization.[29] In this definition, a person qualifies as having a disability if their functional issues fulfill at least one of the following criteria:

• Impairments – The injury causes problems in body function or structure that affect daily life.

• Limitations in Activity – The person has difficulty executing a task or action at least once a day because of the injury.

• Restrictions in Participation – The person is restricted by the injury from involvement in a life situation that would otherwise be available, such as transportation or employment.

Based on WHO criteria, the PHR consultant then classified those people with long-term disabilities. We considered people to have long-term disabilities if they had the disabilities defined above at the time of the assessment and the clinical evaluator mentioned that the disability would likely persist as a long-term disability that would affect the person throughout their lifetime. We excluded psychological and psychosocial disabilities from this analysis. Given that this was a secondary analysis of previously collected data that was not specifically focused on collecting data on long-term disabilities, the consultant reviewed the evaluation documents and any available medical records or diagnostic data; they also consulted relevant clinicians who conducted the clinical evaluations for their assessment of whether survivor injuries and their effects qualified as long-term disabilities, the level of disability, and the impact of the disability on routine activities.

Of the 90 injured Rohingya evaluated by PHR, 43 were left with long-term disabilities as a result of the attacks. These disabled survivors were from 19 different villages throughout northern Rakhine state. The survivors with disabilities included 32 adults (five women and 27 men) and 11 children under the age of 18 (four girls and seven boys).

Consent and Ethics Approval

The PHR researchers obtained consent from each interviewee through an interpreter, following a detailed explanation of PHR’s work, the purpose of the investigation, and its voluntary nature. For reasons of safety and confidentiality, PHR has replaced the names of survivors with pseudonyms and blurred their faces in the images used in this report.

PHR’s Ethics Review Board provided guidance and approved this study based on regulations outlined in Title 45 CFR Part 46, which are used by academic Institutional Review Boards in the United States. All of PHR’s research and investigations involving human subjects are conducted in accordance with the Declaration of Helsinki 2000, a statement of ethical principles for medical research involving human subjects, including research on identifiable human material and data.[30]

PHR Clinical Team

The clinical team involved in field investigations included in this report was composed of six PHR medical experts: Rohini Haar, MD, MPH; Parveen Parmar, MD, MPH; Rupa Patel, MD, MPH; Satu Salonen, MD; Homer Venters, MD, MS; and Karen Wang, MD, MHS.

Limitations

This report sheds light on how multiple attacks on Rohingya living in northern Rakhine state unfolded and provides key forensic evidence on how these attacks had a long-term physical impact on 43 people from 19 separate villages. However, this report does not provide a full analysis of the human rights violations faced by all people from these villages or by the broader Rohingya population. The survivors were interviewed between three and 11 months after the attacks and demonstrated symptoms of trauma, which may have exacerbated recall bias. In addition, given the range of months post-injury at which an individual was interviewed (e.g., some at three months), it would not be possible to determine a definitive diagnosis of permanent disability in all the survivors. We utilize the term “long-term disability” to encompass these disabilities, while acknowledging that rehabilitation services, time, and healing may improve some physical outcomes for some of these survivors.

Definitions of a disability differ, although the WHO describes disability as an “umbrella term, covering impairments, activity limitations, and participation restrictions.”[31] While most definitions of disability include psychosocial impairments, limitations in the field made it impossible for PHR to conduct widespread and in-depth examinations to determine whether survivors suffered psychosocial disabilities as a result of the attacks. However, it is likely that many survivors suffered from post-traumatic stress disorder and other potentially disabling mental health conditions, a phenomenon that has been documented by other humanitarian organizations working with Rohingya survivors in Bangladesh.[32]

Terminology

In this report, the term “Rakhine Buddhist” refers to Buddhist people of Rakhine ethnicity, and “Rohingya” refers to civilian Muslim people of Rohingya ethnicity. “Myanmar security forces” encompasses the military and Border Guard Police officers; the term “Rakhine Buddhist civilians” in this context refers to Rakhine civilians who were armed or appear to have acted in concert with, or at least with acquiescence from, Myanmar authorities during attacks on the Rohingya.[33]

The Rohingya in Myanmar: A Short History[34]

The Rohingya were considered citizens of Myanmar (then “Burma”) under the Constitution of 1948, when the country declared independence after British rule. In 1962, the military junta took over Myanmar, and Myanmar’s Citizenship Act of 1982 fully stripped the Rohingya of their citizenship rights. Myanmar continues to deny citizenship to the Rohingya and to implement discriminatory laws and policies that have led to widespread human rights violations against the Rohingya.[35]

In 2012 and 2013, attacks on Muslim villages uprooted 140,000 Rohingya and made them internally displaced people within Myanmar.[36] In 2014, Myanmar’s first country census in 30 years did not include the Rohingya as a recognized ethnic group and the government initiated a citizenship verification program,[37] whereby the Rohingya were instructed to register as “Bengali.”[38] Many Rohingya resisted doing so for fear of being categorized as “illegal” foreigners. In 2015, a new law was passed requiring that political leaders be citizens of Myanmar, thereby excluding Rohingya from being candidates and from voting.[39] In 2015, the Myanmar government announced that people would be given National Verification Cards (NVCs), but because the process was not transparent and lacked an option to self-identify as Rohingya, many refused the NVC for fear of being registered as “illegal” and expelled from Myanmar. The government increased pressure on the Rohingya to register for the NVC.[40]

In October 2016, the insurgent Arakan Rohingya Solidarity Army (ARSA) attacked three Border Guard Police outposts, killing nine officers. The following day, the Myanmar government declared ARSA “terrorists” and responded with military force, implementing a counterinsurgency campaign. According to the International Organization for Migration, these operations drove an estimated 87,000 Rohingya into Bangladesh between October 2016 and July 2017.[41]

In August 2017, ARSA – armed primarily with knives and homemade bombs – raided 30 police outposts, killing 12 members of Myanmar’s security forces.[42] This was followed by a brutal security crackdown involving arrests, disappearances, beatings, stabbings, mass shootings, rape and sexual violence, looting, and the burning of Rohingya villages.[43] The military has denied responsibility for attacking Rohingya civilians, stating that its offensive was a counterinsurgency campaign focused on ARSA.[44] A UN fact-finding mission used satellite imagery and firsthand accounts to confirm that some 392 villages (40 percent of all settlements in northern Rakhine state) – or nearly 38,000 individual buildings – had been partially or totally destroyed.[45] A separate report by the Public International Law & Policy Group said that the “scale and severity of the attacks and abuses … suggest that the goal was not just to expel, but also to exterminate the Rohingya.”[46] Some 740,000 Rohingya have fled to Bangladesh since the start of the violence in August 2017.

Findings: Disabled by Targeted Violence

The attacks on the Rohingya described by those interviewed for this report followed a similar pattern. Usually in the early morning, when families were at home, Myanmar security forces – sometimes accompanied by groups of Buddhist Rakhine civilians who, in some instances, were armed – entered a Rohingya village. Some Rohingya woke up to the sound of gunfire or shouts. Others saw houses being lit on fire or looted. They saw fellow villagers being rounded up, arrested, beaten, or shot at. Realizing their best chance for survival was to flee to the nearby hills, many attempted to dash out of their homes, often carrying babies, elderly relatives, or the disabled.

Many people were gunned down as they ran. Others stepped on landmines that appeared purposely placed to target fleeing civilians or were hit by shrapnel from rocket launchers or grenades. Some were unable to flee and were brutally beaten after having surrendered to their attackers. Although the systematic gang rape, mutilation, and torture of Rohingya women by Myanmar security forces have been extensively documented elsewhere,[47] only one of the survivors that PHR interviewed for this report elected to recount such incidents herself.

Those who survived were eventually rescued by relatives or managed to take refuge in the surrounding forests, farmlands, or villages. In many cases, local health workers denied survivors necessary medical treatment. Many survivors had heard, directly or indirectly, that Myanmar authorities required doctors to report injured Rohingya to the authorities, thus putting the lives of those injured Rohingya at grave risk. As a result, most survivors interviewed for this report used only herbal remedies for their wounds, or were given bandages, disinfectant, and over-the-counter painkillers from local shops or clinics prior to their arrival in Bangladesh.

Many people were gunned down as they ran. Others stepped on landmines that appeared purposely placed to target fleeing civilians or were hit by shrapnel from rocket launchers or grenades. Some were unable to flee and were brutally beaten after having surrendered to their attackers.

Many survivors now live with physical impairments that will potentially become long-term disabilities. Major causes of disabilities include: neurology injury due to gunshot wounds in 27 out of 43 disabled individuals (63 percent); amputations to limbs after gunshot wounds became infected (three people, or seven percent); debilitating fractures and persistent pain from blunt-force trauma (four people, or nine percent); and debilitating and disfiguring burns and shrapnel wounds from explosive devices (nine people, or 21 percent).

PHR documented significant variance in the type and severity of physical impairments that Rohingya survivors reported. Some survivors could not walk more than a few steps, while others could walk but had pain or a limp and could not remain on their feet for extended periods. Some had lost all use of an arm, while others had lost muscle control in their hands and could not firmly grasp objects. Most of these injuries were likely exacerbated by the lack of immediate medical treatment post-injury, and some examinations indicated a lack of appropriate physical therapy or other rehabilitative services for the affected limb. At the time of writing this report, several organizations in the refugee camps of Bang-ladesh were providing these services, but it was unclear how many Rohingya survivors in need of such services were aware of or had access to them.

Disabilities from Gunshot Wounds

The majority of disabled Rohingya survivors (27/43) examined by PHR medical experts were shot, often while fleeing from the scene of an attack by Myanmar security forces or Buddhist Rakhine civilians. Seven Rohingya examined by PHR medical experts had wounds that were consistent with their testimonies of having been shot from behind while fleeing. Other survivors sustained gunshot wounds when they left an area of relative safety to go back and get an infant or an elderly family member left behind in the epicenter of the attack. Still others were shot while seeking refuge from their attackers – sometimes by Myanmar security forces shooting indiscriminately into areas around Rohingya villages. Those gunshot wounds inflicted permanent neurological damage to the limbs of survivors.

Gunshot wound survivors evaluated by PHR included survivors who had a range of physical disabilities. Three people had lost a majority of function in at least one leg, meaning that they could not walk without crutches or assistance. Six more people had persistent pain and partial loss of nerve functioning, so they could walk only with difficulty and for only a few minutes at a time. Three people had suffered from nerve injury in an arm or a hand – with resulting muscle atrophy, or a wasting away of muscle mass, that results from disuse – while seven others experienced a loss of feeling or sensation in their arms and hands and could no longer do things like hold a pot or a pan or carry their child. Finally, two people had limited motion and chronic pain in their shoulders or neck secondary to gunshot wounds. These disabilities will be a significant impediment in a society in which physical labor is essential to livelihood. “I could work and run normally before. Now I cannot…. People say: ‘He got an injury.’ I feel bad about that – I used to be a normal person,”[48] Uddin said.

Eighteen-year-old Salim Uddin (Profile 18) worked as a farm laborer and lived with his parents, brothers, wife, and son in the village of Chita Para. At about 4 p.m. on a day in late August 2017, Uddin’s family was at home when they saw military personnel shooting at and burning houses. The entire family ran from their home and into the surrounding hills. But Uddin was shot in both legs: “I felt a sharp pain and a hard shake in my body, and I lost consciousness.” Eventually, his father and brothers rescued him and helped carry him to Bangladesh, where he received surgery. He still had difficulty walking and thus working, which made him feel that he no longer belonged. “How can I [farm again]?” he said. “I have to try to do as much as I can, but I can’t hold anything firmly and so I won’t be able to work.”[49]

“I could work and run normally before. Now I cannot…. People say: He got an injury. I feel bad about that – I used to be a normal person.”

Salim Uddin, 18, gunshot injuries to both legs

Faizal Islam (Profile 27) was a 28-year-old farmer who lived with his wife and two children in the village of Pa Da Kah Yua Thit. On August 25, 2017, he saw Myanmar security forces entering the area. Villagers were shot at as they ran. Islam ran with the others and was shot in his left hand, but he was able to hold onto the wound and keep running until he reached the forest, where he stayed for six days before setting out for Bangladesh. Despite receiving immediate medical attention in Bangladesh, he has lost basic motor function in his left hand, rendering him unable to grasp and hold onto objects of any size or weight.

For some survivors, intense, chronic pain from gunshot wounds effectively disabled an injured limb. During an attack around August 25, 2017, Myanmar security forces shot 14-year-old Anowar Hussein (Profile 26) in his right shoulder as he ran to a nearby nut garden to hide. He pretended to be dead, and when the military retreated, he fled to the forest and eventually crossed the border into Bangladesh. When PHR medical experts interviewed him almost a year after the attack, Hussein still suffered from intense, chronic pain that caused him to have a limited range of motion in his shoulders and his right arm, which he could not raise more than 90 degrees. He had previously worked jobs that required physical labor, such as herding cattle.

“I feel bad. It is itchy here at my wound. Sometimes I can’t stand it, the itching and the pain. I can move (my arm) a bit at normal times. But when it becomes very painful, I can’t move at all,”[50] Hussein said.

“I feel bad. It is itchy here at my wound. Sometimes I can’t stand it, the itching and the pain. I can move (my arm) a bit at normal times. But when it becomes very painful, I can’t move at all.”

Anowar Hussein

Amputations Because of Gunshot Wounds

Three of the survivors (3/43 or seven percent) sustained gunshot wounds in limbs that then became infected and had to be amputated. This was likely a result of spending days or weeks hiding from Myanmar security forces without access to adequate medical care.

Mohammed Erfan (Profile 1), a 15-year-old, was at home with nine family members in late August 2017 when security forces and civilians began attacking and arresting Rohingya villagers, looting their homes and then burning them down. Erfan suffered a gunshot wound to his upper left arm as he fled toward the forest. He kept running until he lost consciousness. When he regained consciousness, he was alone and saw that his village had been destroyed. He made his way into the forest and eventually met up with an uncle. They spent two months in the forest, too terrified to leave. Eventually they trekked to Bangladesh, where medical personnel immediately referred Erfan to a hospital to have his arm amputated. Since then, his uncle has been reunited with his wife and children, leaving Erfan alone in the camp. Erfan did not know how he would find work or engage in any other productive activity without his left arm, and he appeared to be suffering extreme trauma and abandonment in addition to his physical disability.

Another patient, 26-year-old Halek Husson (Profile 12) from Mirullah village, had to have an above-the-knee amputation of his left leg after a gunshot wound he suffered became infected. He now walks on crutches and can stand on his right leg for only a few minutes at a time without support. He still felt pain in his left leg after the amputation, mostly at night.

Blunt-Force Trauma

Four survivors (4/43 or nine percent) suffered blunt-force trauma such as beatings or kicking.

This was the only category in which a majority of the victims with disabilities interviewed by PHR (three out of four) were female. As in Muriam’s case, described above, these other two women were unable to escape and were detained by the Myanmar security forces, who subjected them to beatings or other forms of brutality.

Myanmar security forces attacked Bi Bi Zuhra’s (Profile 15) village in the morning of August 30, 2017. Upon seeing soldiers and helicopters, Rohingya civilians fled to the river, but the security forces caught up with them. They rounded up the men and children and killed them with guns and machetes: Zuhra’s husband and five of her six children were killed in front of her. Afterward, she and six other women were taken into a home by force. The men beat her and the other women and broke her wrist. She was then raped by a man who afterwards used a knife to cut her throat in two places and left her for dead. In addition to the severe psychological trauma she endured, Zuhra developed a bony deformity on the end of her forearm that resulted in limited wrist function in that arm.

Burns and Other Injuries from Blast Explosions or Projectile Devices

Nine of the survivors (9/43 or 21 percent) had wounds from explosive devices. Some of them distinctly remembered being shot at by military forces with a rocket launcher or having stepped onto something that exploded under their feet, suggesting that they had stumbled onto landmines that appeared to have been planted as part of an intentional strategy of the Myanmar security forces to kill or injure escaping Rohingya. Others could not specify the type of weapons that had been used to attack them and were only aware that something had exploded close to them.

Twenty-five-year-old Monzur Alom (Profile 17) was a teacher at a mosque in the village of Tin May. He was at home asleep with his wife and three children when he heard shooting. He saw military and Border Guard Police, which he recognized by the uniforms they wore, entering the village and shooting guns. He and his family ran out of the house to escape the attack, but Alom turned back when he realized they had left behind his eight-month-old son. He saw Myanmar security forces firing a rocket launcher in the direction of fleeing villagers but made a dash for it with his son held to his chest. Seconds later, something exploded directly in front of him, hitting and instantly killing his son. The explosion inflicted shrapnel wounds and severe burns on Alom. Despite his wounds, he ran until he lost consciousness. Eventually, he was transported to Bangladesh with the help of his family. Extensive scarring to his hands and wrists will make it difficult for him to do any kind of physical labor, as those injuries prevent him from fully flexing or making a fist with his right hand.

Abu Tayub (Profile 25), a 25-year-old farmer from Gu Dar Pyin, was fleeing approaching Myanmar security forces on August 25, 2017 when he was hit by the blast from a landmine. The explosion killed five other fleeing villagers around him and seriously injured his left arm. He hid in the forest for three days before traveling to another village, where somebody helped him bandage his wound. After seven days there, he traveled to Bangladesh, where he was sent to a hospital and received skin grafts. He has lost all function in his left hand, likely rendering him unable to perform many of his previous farming activities. “I used to be a hard laborer,” said Tayub. “I can’t work now, I can’t even lift the small water pot that is used at the latrine…. I feel so sorry that I can’t use my hand anymore.”[51]

“I used to be a hard laborer…. I can’t work now, I can’t even lift the small water pot that is used at the latrine…. I feel so sorry that I can’t use my hand anymore.”

Abu Tayub

Human Rights Analysis

Crimes Against Humanity

The Rome Statute, the treaty which established the International Criminal Court (ICC) and defines core international crimes, enumerates murder, torture, rape and other forms of sexual violence, enforced disappearances, and the forcible transfer of populations as crimes against humanity. The Statute extends the definition of crimes against humanity to “inhumane acts … intentionally causing great suffering, or serious injury to body or to mental or physical health.”

The August 2017 attacks by Myanmar security forces against the country’s Rohingya minority, which left the 43 survivors whose cases are documented in this report – and quite possibly many more – with long-term disabilities, fit this definition.

These crimes have been thoroughly documented by Physicians for Human Rights (PHR) and other credible organizations: 88 percent of the 604 village leaders surveyed by PHR in August 2018 reported violence in their hamlets in or around August 2017, clearly showing that the attacks were widespread and followed notable patterns. Among many other crimes, security forces shot at villagers who were fleeing attack or randomly shot into forests and other places where survivors sought refuge.

PHR’s research demonstrates that the Myanmar military’s actions must be investigated per the Rome Statute or another ad hoc tribunal with jurisdiction to try individuals for serious international crimes, including crimes against humanity and genocide. While Myanmar is not among the 124 nations that are party to the Statute, the Statute allows the United Nations Security Council to refer non-signatories to the court.[52]

Genocide

The Convention on the Prevention and Punishment of the Crime of Genocide (commonly referred to as the “Genocide Convention”),[53] which Myanmar ratified in March 1956,[54] specifically criminalizes acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The Convention notes that the following acts are punishable: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; and complicity in genocide. The crimes committed by Myanmar security forces against the Rohingya and detailed in this report may constitute violations of the Genocide Convention.

Unlawful Use of Landmines

The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, known as the Mine Ban Treaty, to which 164 nations are party, forbids the use of antipersonnel landmines, and further extends this prohibition by banning signatory nations from using, stockpiling, developing, or producing these weapons entirely.[55]

Survivor accounts indicate the possible unlawful use of landmines by Myanmar security forces against Rohingya civilians. Some survivors described seeing, hearing, or being the victims of explosive weapons. Some reported seeing or being hit by a rocket or a grenade, while others had blurred memories and only knew that they had been burned or hit with shrapnel from a nearby explosive. The Myanmar government claims that the Arakan Rohingya Solidarity Army is responsible for placing landmines in Rakhine state, yet numerous reports have documented that the Myanmar military actively placed landmines in the area prior to their attacks on Rohingya villages.[56]

Three survivors, all from the village of Gu Dar Pyin, described surviving or witnessing the use of landmines. Abu Tayub said he had been fleeing the Myanmar forces and running toward the mountains, and when he reached a field outside his hamlet landmines began exploding all around him. He said that five people he was running with died instantly, and that his left hand was injured in the blasts. Mustafa Kamal, a 23-year-old who was severely wounded but not permanently disabled by the attacks, also reported stepping on an object that exploded under his feet, leaving him with a shrapnel wound to his left arm. Rashid Ahmed (Profile 33), a gunshot victim from Gu Dar Pyin, was not hit by a mine himself but said he had seen landmines exploding and saw three people die instantly as a result.

While Myanmar is not a party to the Mine Ban Treaty, its use of landmines is unlawful both in times of conflict and non-conflict, as these weapons do not discriminate between civilians and combatants, thereby affecting a breadth of human rights ranging from the right to life to freedom of movement.

In addition to signing and ratifying the Mine Ban Treaty, Myanmar must guarantee assistance and support for the often extensive rehabilitation that landmine victims require for recovery. The Journal of Conventional Weapons Destruction noted in a 2015 article on landmines in Myanmar that people disabled by landmines are, as a result of their injuries, “poorer than the rest of the community and have a lower level of education. They are also more isolated and less integrated into local society, facing discrimination and stigma,”[57] as is likely to be the case with the survivors included in this report.

Health Services Access Denial

“They [Myanmar security forces] threatened that if they could catch injured people, they would slit their throats.”

Abu Tayub, 25

Myanmar is party to the International Covenant on Economic, Social and Cultural Rights (ICESR), a treaty which requires governments to guarantee the “highest attainable standard of physical and mental health.”[58] This covenant, which the government of Myanmar ratified in 2017, requires states to “ensure the right to access health facilities, goods, and services on a non-discriminatory basis.”[59]

Many survivors of the August 2017 attacks evaluated by PHR reported that they did not have access to medical care, despite facing life-threatening injuries. The lack of timely access to medical services and denial of care constitutes an infringement of the Rohingya’s right to health, as well as a major violation of universally recognized principles of medical ethics.

Several survivors said they had received only rudimentary medical services from local medical clinics with limited resources to treat their injuries, such as wound bandaging and over-the-counter pain med-ications. Many did not get proper medical treatment at all and instead sought treatment from local tra-ditional healers or treated themselves using herbal remedies like turmeric. These remedies were clearly insufficient to treat the life-threatening injuries Rohingya suffered. Several of the survivors said that they had either directly or indirectly heard that medical personnel in Myanmar were compelled to re-port injured people to the Myanmar authorities.

“They [Myanmar security forces] threatened that if they could catch injured people, they would slit their throats,” said Abu Toyub (Profile 25).[60]

As a result of the lack of medical treatment, 17 of the 43 disabled survivors interviewed and physically examined by PHR had to be carried into Bangladesh, while three could walk, but only with assistance. It was only once in Bangladesh that they received adequate medical treatment. Delays in medical attention resulted in overall poor health outcomes, increased complications, including infection, and less recovery of limb function and higher levels of immobility and disability among victims. Two survivors whose wounds became infected while hiding eventually required amputation of their limbs. One gun-shot wound survivor had a recurring limb infection that PHR medical experts suspected was due to an infection that extended from their skin to the bone due to an untreated wound. Bone infections require immediate treatment and months of antibiotic therapy and when inadequately treated often result in permanent limitations in limb movement, changes in sensation in the affected limb, and limb pain. Many survivors also said they still suffered chronic limb pain months after the attacks. Such pain can sometimes result from the delayed or inadequate management of acute pain, wounds (muscle, ligament, nerve, skin, and bone injury), and complications of the original physical injury, such as infections.[61]

As noted above, the Rohingya have long had inadequate and discriminatory access to health care within Myanmar. But the failure to deliver medical care in an emergency situation where an injury is a genuine threat to a person’s life is a major violation of the principles of medical ethics. The World Medical Association, an independent global confederation of medical providers, calls for medical providers to make the health of their patient their first consideration, and not to allow considerations of creed, ethnic origin, or nationality to interfere with their care for patients.[62]

There are indications that discriminatory deprivation of medical services to Rohinyga remaining in Myanmar is worsening, according to reports from aid groups working there. Rohingya have to pay more for treatment, are kept in segregated wards, and even have difficulty obtaining blood donations because of state-sanctioned discrimination against them.[63]

Both the denial of emergency care during the August 2017 attacks as well as ongoing discriminatory access to health care services for the Rohingya in Myanmar constitute serious violations of the right to health.

Deprived of the Ability to Work

“How can I [farm again]? I have to try to do as much as I can, but I can’t hold anything firmly and so I won’t be able to work.”

Abu Tayub, 25, landmine injury

The ICESR also guarantees that all people have the “right of self-determination,” including the right to “freely pursue their economic, social and cultural development.” It also decrees that “in no case may a people be deprived of its own means of subsistence.” This principle is further reinforced by Article 6, which enumerates the right to work, meaning “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” Denial of this right has a ripple effect on a series of other human rights, such as the right to an adequate standard of living.[64]

The Rohingya who remain in Myanmar are already denied this right: the government has continued to target Rohingya by shelling their villages[65] and forcing them to live in camps for internally displaced people, where their freedom of movement and association is highly restricted, depriving them of their ability to pursue a livelihood through farming or other means.[66]

However, even under more hospitable conditions, having a physical disability would make life in rural northern Rakhine state – which was home to all 43 survivors whose stories are recounted in this report – challenging; in a region where farming, fishery, and aquaculture are the main sources of livelihood,[67] amputees or those who no longer have full use of their limbs will clearly be unable to realize their right to work. A survey of four northern Rakhine townships found that 54 percent of households sold crops, livestock, aquaculture, or fishing products in the 12 months before the survey, while casual farm labor accounted for more than a quarter of people’s income.[68] Forty-four percent of people in Rakhine state live below the poverty line, compared to the national average of 26 percent.[69] Subsistence farming is a vital part of everyday life.

Fifteen of 19 survivors who gave information about their or their family’s source of income said they made their money farming, fishing, or doing other types of physical labor. Two survivors were teachers (although one said he also made money by working on the family farm) and two were students. The remaining 24 did not state their source of income.

Given the crucial role of physical labor in the predominantly agricultural economy of rural Myanmar and the purposeful official barriers that the Rohingya face in accessing health services there, these potentially long-term disabilities will change the course not only of the survivors’ lives, but their livelihoods as well. The World Food Programme has noted that while most of Mynamar’s residents struggle to access “sufficient, safe and nutritious food,” people with disabilities face even greater challenges due to “discrimination, including customary laws and traditions.”[70]

A Myanmar government survey published in 2012 revealed that 85 percent of the country’s people with disabilities were unemployed and relied on “casual labor” for their livelihood. As a result, persons with disabilities in Myanmar “are more likely than non-disabled persons to be poor, uneducated, unemployed, to live in poor housing, to be landless, to die prematurely, to have food insecurity, to be unable to access public information, to be excluded from public places, and to be ignorant of their rights.”[71]

The poor employment prospects of disabled Rohingya if and when they have the opportunity for safe and voluntary return to Myanmar are compounded by long-standing barriers to education. Schools are segregated in Rakhine state, and travel bans have prevented Rohingya schoolteachers from accessing government-run teacher training programs, meaning that many Rohingya teachers do not have higher education.[72] This limited and segregated access to education – in and of itself a violation of the right to education guaranteed in the ICESR – has been the status quo for many years.[73] In addition to guaranteeing education, ICESR mandates a right to “technical and vocational guidance and training programs.”[74] Without access to adequate schooling and training programs, Rohingya returnees to Myanmar are unlikely to acquire skills that could help mitigate the impact of their disability on their employment prospects and standard of living.

Disability Rights

The Convention on the Rights of Persons with Disabilities (CRPD) guarantees the rights of disabled people not to be discriminated against, to be actively included in society, and to be guaranteed equal opportunity and accessibility. The CRPD also calls on governments to “promote vocational and professional rehabilitation, job retention and return-to-work programs for persons with disabilities.”[75]

In addition to allowing the independent investigation and prosecution of those responsible for past crimes against the Rohingya, the Myanmar government has forward-looking obligations toward the disabled. As noted above, even able-bodied Rohingya continue to face discrimination in accessing education, health care, and employment opportunities in Rakhine state. If and when the Myanmar government creates the conditions for safe and voluntary return of Rohingya survivors from Bangladesh, disa-bled returnees are likely to face even greater barriers.

Myanmar’s Response

To date, the Myanmar government has denied scrupulously well-documented allegations of widespread and systematic violence by security forces who targeted the Rohingya. It has also blocked international human rights organizations and the United Nations Special Rapporteur on Myanmar, Yanghee Lee, from accessing the country to investigate these allegations. The Myanmar government has also made no public mention of the disabilities inflicted upon thousands of Rohingya by the targeted violence of August 2017. The Myanmar government has also failed to acknowledge its obligation to provide rehabilitation and reparations for disabled Rohingya civilians or to create conditions for their safe and voluntary return.

As of December 2018, the Myanmar government appeared to be cementing segregation by forcing the minority of Rohingya who remain in Myanmar to live in separate and closely monitored camps.[76] Humanitarian aid groups had been banned from providing much-needed food and other assistance to the region[77] and renewed military operations – including the shelling of villages inhabited by civilians – had displaced an additional 5,200 Rohingya in Rakhine state.[78] These operations, in response to alleged attacks by the Arakan Rohingya Solidarity Army (ARSA), have also included official restrictions on the amount of food that Rohingya can transport to their villages due to allegations by military authorities that Rohingya village food stores supply ARSA insurgents.[79]

In September 2018, the UN Independent International Fact-Finding Mission on Myanmar found that the crimes carried out by security forces against the Rohingya in August 2017 should be investigated and prosecuted as genocide, crimes against humanity, and war crimes.[80] In response to these findings, the UN Human Rights Council voted overwhelmingly to extend the mandate of the fact-finding mission so that it could continue gathering evidence for eventual use in criminal proceedings against the Myanmar government.[81] The fact-finding mission recommended that Myanmar be prosecuted by the International Criminal Court (ICC). Though Myanmar is not party to the Rome Statute, which established the ICC, the UN Security Council can refer a non-signatory to the ICC for investigation. However, Russia and China reportedly oppose such proposals.[82] The fact-finding mission also recommended other avenues for prosecuting Myanmar officials, such as an ad hoc international tribunal, and created an independent mechanism “to build on the important work of the Fact-Finding Mission by collecting, consolidating, preserving and analyzing evidence of the most serious crimes and violations of international law committed in Myanmar since 2011.”[83]

Myanmar has refused to cooperate with international attempts to investigate the alleged crimes and has failed to establish truly independent mechanisms to do so within the country. A government-backed commission announced in December 2018 that it had found no evidence to confirm the UN fact-finding mission’s allegations.[84] Eight previous Myanmar-led commissions have failed to find systemic wrongdoing on the part of the security forces,[85] and there is little hope that members of the new council will be impartial. As of January 2019, Myanmar continued to bar entry to UN Special Rapporteur on Myanmar Yanghee Lee.[86]

Myanmar’s refusal to engage with the international community has been reinforced by a crackdown on domestic civil society and media outlets. Two Reuters journalists were arrested for reporting on the massacre of 10 men and boys from a Rohingya village. In September 2018, they were sentenced to seven years in prison. The Myanmar government freed the two journalists on May 7, 2019 after relentless international pressure for their release.[87] The Myanmar government has blocked journalist access to Rakhine state and has denied allegations of human rights abuses confirmed by other media outlets.[88] Most humanitarian organizations have been barred from working in northern Rakhine state.[89] Barring journalists and humanitarian organizations not only harms the civilian population of Rakhine state by depriving them of services, but eliminates potential witnesses to any past or future crimes, leaving civilians even more vulnerable.

In late October 2018, officials from Myanmar and Bangladesh announced an agreement to begin repatriation of Rohingya currently living in Bangladesh back to Myanmar.[90] UN officials condemned the plan,[91] noting that security risks and living conditions for Rohingya within Myanmar are still dire. Many Rohingya inside Myanmar are forced to live in government-run camps for internally displaced persons, where strict travel restrictions and curfews are a daily reality.[92] Plans to relocate the displaced to government housing far from the Rohingya’s native villages have been criticized for attempting to further cement segregation.[93] The government of Bangladesh is pursuing plans to relocate up to 100,000 Rohingya currently in Cox’s Bazar to the nearby uninhabited island of Bhashan Char.[94] UN Special Rapporteur Yanghee Lee in March 2019 publicly questioned “whether the island is truly habitable.”[95]

Conclusion

Based on the accounts in this report of Rohingya women, men, and children suffering severe disabilities as a result of the 2017 attacks by Myanmar security forces, it is clear that Myanmar security forces perpetrated grave human rights violations against the Rohingya, and that Myanmar’s actions should be investigated per the Rome Statute of the International Criminal Court or before other ad hoc tribunals that have jurisdiction to try individuals for serious international crimes, including crimes against humanity and genocide. Additionally, Myanmar should be held to account for other violations of civil and political rights, the right to health, the right to work, and the unlawful use of landmines against civilians.

Moreover, the stories and medical documentation detailed in this supplemental report underscore the importance of enforcing Myanmar’s forward-looking obligations to the Rohingya people. For many years, the Rohingya have been denied the right to citizenship and the right to self-identify as Rohingya, and they have been routinely denied or given discriminatory access to health care services, employment opportunities, and education. This situation continues within Myanmar today, and is bound to confront returnees with long-term disabilities with an even more daunting reality, since their inability to do physical labor will limit their economic prospects.

The Myanmar government is clearly unwilling to investigate, acknowledge, and hold accountable those people responsible for these crimes, or to stop discriminatory practices against the Rohingya. Therefore, international actors must help bring justice to the Rohingya. Among other measures, they must put mechanisms in place to ensure that Rohingya disabled in the attacks receive reparation for the harms they have sustained, and that, wherever they reside, they have the possibility to thrive.

Recommendations

To the United Nations Security Council:

• Implement the recommendations of the UN’s Independent International Fact-Finding Mission on Myanmar, including:
  • Investigate and prosecute crimes committed by the Myanmar government by referring the situation to the International Criminal Court, or by creating an ad hoc criminal tribunal;
  • Impose an arms embargo against Myanmar until independent international observers certify that the Myanmar government no longer supports or perpetrates gross human rights violations against the Rohingya and other minority groups and vulnerable populations in Myanmar;
  • Adopt individual sanctions, including travel bans and asset freezes, against responsible Myanmar officials, including at the highest levels of government and the security forces;
  • Support safe, dignified, and voluntary repatriation of refugees only with assurances and international monitoring of safety and individual choice, with explicit human rights protections, including citizenship, for the Rohingya;
  • Create a trust fund for victim support, including psychosocial support, legal aid, livelihood support, and other means of assistance.
• Convene a session dedicated to the commission of atrocity crimes in Myanmar, with a specific focus on genocide prevention tools that should guide UN policy toward Myanmar in order to mitigate future risks to Rohingya and other groups in the country.

To United Nations Member States:

• Create an internationally-funded mechanism to provide the resources necessary for sustained treatment, rehabilitation, and vocational training for Rohingya victims physically disabled in the 2017 attacks.
• UN member states who are party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) and who have already recognized the crimes against the Rohingya as genocide – including Canada and Malaysia – should file complaints to the International Court of Justice (ICJ) for the Myanmar government’s violation of the Genocide Convention and press the ICJ to seek reparations.

To the United Nations Special Rapporteur on Disability and the UN Division for Social Policy and Development, which oversees enforcement of the Covenant for the Rights of People with Disabilities:

• Support the creation of a systematic assessment of the Rohingya population disabled in the Au-gust 2017 violence in order to triage the most serious cases for immediate treatment and for longer-term rehabilitation and vocational training with transition to economic dependence, and psychosocial support of those individuals.
• Urge the government of Bangladesh and UN member states supporting Bangladesh’s humanitarian support for Rohingya refugees to respect their obligations under Article 11 of the Convention on the Rights of Persons with Disabilities, which requires state parties to “ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies, and the occurrence of natural disasters.”
• Urge only safe, dignified, and voluntary repatriation of refugees, including those Rohingya with dis-abilities, and only with assurances and international monitoring of safety and individual choice, with explicit human rights protections, including citizenship, for the Rohingya, in line with Article 15 of the Convention on the Rights of Persons with Disabilities, which requires state parties to “take all effective legislative, administrative, judicial or other measures to prevent persons with disabili-ties, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
• Urge UN member states supporting international accountability efforts for Rohingya victims and survivors of the August 2017 violence to respect their obligations under Article 13 of the Convention on the Rights of Persons with Disabilities, which requires states to “ensure effective access to justice for persons with disabilities on an equal basis with others.”
• Urge the government of Bangladesh and UN member states supporting Bangladesh’s humanitarian support for Rohingya refugees to respect their obligations under Article 16 of the Convention on the Rights of Persons with Disabilities, which requires state parties to “take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons who become victims of any form of exploitation, violence or abuses, including through the provision of protective services.”

To the Government of Myanmar:

• Cease segregation of and human rights violations and discrimination against the Rohingya people.
• Appoint an independent third party to investigate and prosecute human rights violations and crimes against humanity committed during the August 2017 attacks as well as other violations committed against the Rohingya and other religious and ethnic minorities in Myanmar.
• Grant access to United Nations officials, agencies, and other international organizations to investi-gate human rights violations in Myanmar, particularly in Rakhine state.
• Provide assistance to all Rohingya people with disabilities, including those disabled in the violence of August 2017, including:
  • Creation of a trust fund or other financial mechanism to provide sustained support to those who were injured in the August 2017 attacks and are unable to achieve financial independence as a result;
  • Provision of funding for free and comprehensive long-term access to health care and rehabilitative services, with the explicit aim of promoting vocational and professional rehabilitation; and
  • Creation of return-to-work programs designed for people with disabilities, and full access to and promotion of educational opportunities for the disabled.
  • Guarantee safe, dignified, and voluntary repatriation of Rohingya refugees by explicitly protecting their human rights, including with guarantees of citizenship.

To the Governments of the European Union and the United States:

• Expand existing financial sanctions against the Myanmar government and military, and specifically link the lifting of those sanctions to measurable benchmarks, including the end of human rights violations, discrimination, and segregation targeting the Rohingya and to cooperation with international mechanisms for accountability.
• Expand visa bans and asset freezes to include all senior Myanmar security officials for whom the United Nations Fact-Finding Mission and domestic and international human rights organiza-tions have compiled convincing evidence of those officials’ complicity in grave rights violations against the Rohingya people.
• Impose broader trade sanctions on specific industries within Myanmar, including the loss of tariff-free access to European Union (EU) markets by revoking Myanmar’s EU trade access via the “Everything But Arms” agreement of the Generalised Scheme of Preferences.
• Impose foreign investment bans on businesses with proven close links to the Myanmar military.
• Support resolutions in national and international fora to protect Rohingya refugees from forced repatriation, and to ensure the safe, dignified, and voluntary return of displaced persons. Maintain or expand current suspensions on military relations between Myanmar and the EU or the United States, and specifically condition the full resumption of military relations on specific human rights and accountability benchmarks, including those referenced and recommended in this report.

Profiles

Profile 1: Mohammad Erfan, a 15-year-old male

• Impairment: Gunshot wound resulting in amputation of arm. Treatment delayed due to violence.
• Disability: Unable to perform basic tasks, including manual labor in an agricultural setting without a prosthesis.

In late August 2017, Mohammad Erfan was at home with nine family members in the mid-afternoon when security forces and Rakhine Buddhist civilians surrounded his village. The civilians entered homes and looted valuables. Anyone who resisted or ran away was attacked by security forces, who then began burning down homes.

Erfan ran into the forest with his family and was shot in the left upper arm. He recalled running for a bit and then fainting. When he regained consciousness, he couldn’t see anyone and his village had been destroyed. He had not seen his parents since, but found an uncle and two siblings in the forest near his village. They spent two months there, too afraid to leave, but eventually they traveled to Bangladesh. Erfan had no treatment for his arm and was unable to move it. He had severe pain, but no fever or signs of infection during those two months.

At the border, Erfan was referred straight to the hospital where his left arm was amputated, leaving a stump. He still suffered from itching and ghost limb sensations. His uncle had found his wife and children and had gone to stay with them, leaving Erfan alone in the camp. At the time of the interview, he thought he would be able to leave the hospital soon but did not know how he would find work or do anything without his arm.

PHR Medical Evaluation

Erfan had a total left upper extremity amputation with good granulation (re-growing) tissue around a still open 4 cm area at the stump. Otherwise, the wound was clean, dry, and intact. A review of medical records included labs and chest X-ray which were all unremarkable and a simple surgical report indicating he had an amputation but not noting the reason it was needed.

Profile 2: Fozol Korim, a 28-year-old male

• Impairment: Gunshot wound resulting in bone fracture, nerve injury, rotator cuff tear and limited ability to lift and move arms. Treatment delayed due to violence/incorrectly treated.
• Disability: Unable to perform basic tasks, including holding his newborn child.

One night in September 2017 at around 4 a.m., Fozol Korim heard gun shots in his village of Mirullah. He went outside and saw Myanmar security forces about 500 meters away firing weapons. On the other side of the road, security forces were trying to surround the village and were burning houses. He woke his wife and four children and they ran into the forest.

At around 8 a.m., the security forces started firing randomly into the forest, knowing villagers were hiding nearby. Korim’s nephew was shot in the chest and died immediately. His cousin was shot in the back of the head and died immediately. Korim was shot in the left upper back area. He fell, losing blood and feeling weak. The family carried him for more than four days to Bangladesh.

He went immediately to a hospital where little was done for him. An X-ray showed a broken bone. Korim still could not lift any weight with his left arm and felt very weak. He had a newborn child, who he couldn’t carry in that arm. He had persistent aching chest pain and fatigue.

PHR Medical Evaluation

Korim’s exam was consistent with his narrative.  His weakness was obviously visible and represented a more than superficial injury to the limb’s bone, nerves, and muscles, which includes a rotator cuff tear.

Korim had an entry and exit bullet wound in the left upper back just over the superior scapula (shoulder bone). The entry wound is about 1.5 cm and circular. The exit wound is oval-shaped with the medial (middle) area appearing with a scab and an extended lateral oval area, consistent with a bullet injury. The scab area, according to the patient, is very itchy and he scratches it regularly. He had no history of bone or soft tissue infection or pus draining from the limb. The wound appeared clean, dry, and intact and was forming a small scab. He had no pain when examining the wound by the examiner’s hands or no tenderness to palpation. His scapula (shoulder bone) and clavicle (collar bone) appeared intact.

Korim had significantly limited range of motion and could not lift his left arm above his head and has limited posterior (backward) movement, a severe limitation that constitutes a disability (per WHO definitions).[96] The length of time since the initial injury, coupled with the lack of progress made over time, classifies this as a long-term, and likely permanent, disability.

Profile 3: Abdul Wahid, a 6-year-old male

• Impairment: Gunshot resulting in leg injuries, causing inability to walk without a limp or run. Treatment delayed due to violence.
• Disability: Unable to perform basic tasks including walking and rice farming.

Abdul Wahid’s family were rice farmers in the village of Morikorum. Wahid’s father said the Rohingya had experienced increasing persecution and had not been allowed to leave their town to buy things. On September 3, 2017, after already hearing that the military was attacking all nearby Muslim villages, the family saw Rakhine Buddhist civilians and security forces entering the village. They ran in the forest and walked for two days, when they heard gunshots nearby. Wahid was hit in the left leg, but nobody else in the group was hit.

Wahid remembered being shot but then fainted. His father carried him another two days through the forest to Bangladesh. Wahid was bleeding from several wounds in his scalp and on the left side of his leg, buttocks, and back. His leg was shattered. In Bangladesh, he had surgery and spent a month in the hospital before returning to the camp on crutches. He could walk independently but had a limp and could not run.

PHR Medical Evaluation

(Patient’s) wounds were significant and consistent with the manner of injury described in the history, specifically a projectile injury, either from a shotgun or ricochet of bullet fragments.

Wahid had several scars over his left leg, hip, and buttocks and on his scalp that appeared a few months old. He had a valgus deformity (bone angled away from leg) on his left leg and walked with a limp. He had a 3 cm stellate burst (star-shaped) scar with an 8 cm surgical wound superior to (above) it over the anterior (front) left mid-shaft of the leg. He also had similarly aged wounds of 0.5 to 2 cm over the right superior tibia area (top of lower part of leg) and the medial (middle) aspect of the right knee. He also had a 0.3 cm right frontal scalp wound just past the hairline. He had two wounds to the left buttock consistent with a projectile injury (circular) and a 3.5 cm by 0.75 cm healed wound just superior to (above) the penis in the groin area.

Profile 4: Mohammad Eliyas, a 20-year-old male

• Impairment: Explosive blast resulting in deformities of left eye, loss of fingertips, and other hand injuries. Treatment delayed due to violence/untreated.
• Disability: Difficulty with any basic tasks with his hand, including gripping and loss of sight.

Mohammad Eliyas reported that his village, Landha Khali, was attacked on August 27, 2017 by Myanmar security forces. He was at home with 11 family members. As he heard shouting outside, Eliyas was hit by something hot and heard a loud explosion at the top of his house. He reported falling to the ground and being confused. He then recalled being picked up by his family and helped out of the house. At that time, he had pain in his right hand and left eye and also in his arms and chest. He could not see from his left eye thereafter. His house was full of smoke and flames, and smoke and flames were coming from other houses as well. His family led him out of the village and they walked to Bangladesh, which took two days.

Eliyas was sent to the hospital for his hand injuries, but no surgery was possible, and he had not seen medical staff about his eye. He reported that he could only see light and dark from his left eye, not shapes or colors. He also reported constant tearing which got worse if he went out during the day.

PHR Medical Evaluation

Eliyas’s physical examination revealed numerous injuries that are highly consistent with his account of blast injuries secondary to an explosive/incendiary device being detonated in or on his home. The injuries to his right hand revealed a traumatic loss of bone and skin that was imprecise and resulted in varying degrees of damage to his fingers. The multiple scars on Eliyas’s hands, arms, and chest were also consistent with multiple fragments from various types of materials impacting his body all at the same time.

Eliyas’s left eye revealed blurring of the perimeter of the iris from the 2 o’clock to 10 o’clock positions. This blurring included a loss of border between the sclera and iris and also included a brown ring of pigmentation. The sclera was injected (reddened) in the inferior half of the eye and the pupil appeared largely opacified and the border between the iris and pupil was not apparent.

Eliyas’s right hand revealed damage to the tips of his fingers and thumb. His thumb was grossly deformed from the interphalangeal joint distally (end joint). The bone of the distal phalanx was palpable under the palmar surface of the thumb, with bone extending to the tip of the thumb, but also at 90 de-gree angle toward the thumb pad. The thumb nail was largely absent and heaped up scar tissue was present on the dorsal surface of the thumb’s distal phalanx. Eliyas’s third (middle) finger revealed total loss of the distal phalanx with scar tissue growing around the distal aspect of the proximal phalanx (end of the first joint). Eliyas’s right wrist revealed a curving linear scar of 4 cm that extended from the mid-line of the wrist to the lateral aspect, well approximated. His left hand revealed a 0.5 cm linear scar well approximated near the base of the index finger on the palmar aspect.

His thorax revealed two parallel raised and irregular scars, approximately 0.5 and 1 cm in length located approximately 2 cm lateral to the right clavicular notch of the sternum.

Profile 5: Muriam Khathu, a 5-year-old female

• Impairment: Sustained pelvic fracture with nerve injuries from being thrown against a wall, kicked, and stomped on. Has ongoing pain and is unable to move legs or bear weight on them. She was untreated after the incident.
• Disability: Unable to walk or stand, resulting in the inability to perform basic tasks independently, which her mother now must do for her.

According to an account provided by her mother, Muriam Khathu was in her house with her mother, father and both grandparents on the day their village was attacked, sometime in September 2017. Security forces approached the village and began firing their rifles and throwing grenades at some of the homes. Khathu’s mother stated that their house was burned down but did not specify how it was set alight.

When the attack started, Khathu and her family ran out of their house. Her father was shot and killed by security forces. Once outside, a member of the security forces grabbed Khathu (who appears to weigh about 40 pounds) and threw her against a wall. That man and three other members of the security forces then began to kick and stomp on her with combat boots. Khathu’s mother reported that this physical attack lasted several minutes, during which she and Khathu’s grandparents pleaded with the security forces to stop. Khathu’s mother reported that she picked up the child when the security forces stopped and ran away from the house with the grandparents. They carried Khathu to Bangladesh on a makeshift stretcher. Khathu cried every time they moved her for many weeks.

PHR Medical Evaluation

Khathu appeared to suffer from a pelvic fracture with nerve injuries. Her current physical limitations are consistent with her mother’s account of pelvic and abdominal blunt force trauma. It appears that her injuries have gone essentially untreated. Her ongoing pain and inability to walk or bear weight two months after her injury indicated a poor prospect for physical recovery. During the exam, Khathu did not appear to move her lower limbs spontaneously. When asked about her ability to move her legs, Khathu responded that she could move them “only a little” but that she could not bend her legs, let alone stand or bear weight on them.

Khathu’s mother stated that Khathu’s pain had diminished but that her daughter had pain whenever she moved and that she could not stand or walk. Khathu’s mother was responsible for all of her daily needs.

Profile 6: Ali Huson, a 45-year-old male

• Impairment: Gunshot wound resulting in bullet lodged in knee and fractures of the fibula and tibia. Treatment delayed due to violence.
• Disability: Unable to walk.

Ali Huson stated that he was at home with his family in the village of Dunz Para sometime in October 2017 when security forces entered his village and began firing rocket-propelled grenades at houses. His house was surrounded by security forces with rifles. He and his family fled on foot, but as he was run-ning Huson was hit in the left lower leg and fell. His family helped him up and carried him away. Huson was unable to walk during the journey to Bangladesh but his family carried him using a makeshift stretcher. He was taken directly to the hospital upon arrival in Bangladesh.

PHR Medical Evaluation

Huson’s injuries were consistent with his report of being shot with a rifle while fleeing. The presence of a bullet in his knee was fully consistent with an entry point from behind, with total destruction of the fibula and complete and displaced fracture of the tibia.

Huson’s inability to bear weight, persisting point tenderness, and X-ray showing only repair of the tibia suggested that fibula repair would be more complicated. An X-ray of Huson’s right lower leg showed that the fibula was shattered in numerous pieces just below the head of the fibula. The tibia was also fractured. A fully intact bullet could be seen still lodged in the soft tissue of the knee. A subsequent x-ray showed a surgically repaired tibia with rods and screws but not a repaired fibula. Upon examination, the front of Huson’s right knee had a surgical scar approximately 22 cm in length. The surgical wound appears to be healing well, with no signs of infection or re-opening. Huson had no pain during the physical exam of the knee and a 2 cm hard object can be felt under his skin on his right knee cap. He has a healing, irregular 2×2 cm wound on the back of his lower leg. He reports that he is unable to walk or bear weight on his leg.

Profile 7: Fozol Ahmed, a 35-year-old male

• Impairment: Beating of both legs with rifle butts resulting in multiple displaced fractures, subsequent leg deformities and shortening of the right leg, and extensive soft tissue damage with bruising and scarring.
• Disability: Unable to walk without pain and difficulty walking due to different lengths and thicknesses of legs caused by the injuries.

Fozol Ahmed reported that his village was attacked sometime in October 2017. He fled with his family after security forces attacked his home with rocket-propelled grenades. He reported that he was approximately 500 meters from his house when the security forces stopped him and several others. The security forces tied their hands with rope while the others continued to flee.

Ahmed reported that once his hands were bound, four or five security force members took turns striking him with rifle butts. Ahmed reported being on the ground during the assault with his hands tied behind his back, trying to roll away from the blows but being held in place. He reported being struck several times on his legs and back, causing extreme pain. He pleaded with the security forces not to kill him and promised that if they did not kill him, he would flee to Bangladesh and never come back. Ahmed reported that, as soon as he said this, the security forces stopped beating him and pushed him into a field. They beat other men in the same manner.

PHR Medical Evaluation

Ahmed’s injuries to his legs were consistent with his account of being beaten with rifle butts. The presence of skin wounds combined with displaced fractures to the long bones of his leg are characteristic of being struck with a rifle butt. Ahmed appeared to require repair of his femur and profound swelling of the right thigh likely represents a combination of bruising and soft tissue injuries.

Ahmed’s right leg appeared grossly shorter than the left. He shared several X-rays which showed dis-placed fractures of his bilateral tibias as well as a right femoral fracture. On physical examination, Ahmed’s left leg revealed a 20 cm surgical wound, healing well, along the middle of his lower leg. His left leg also had a 7 cm irregular, linear wound in the early stages of granulation tissue (growing new tissue) on the front of his shin. Ahmed’s right leg was noticeable for a grossly swollen thigh, approximately twice the circumference of his left thigh. His right thigh was swollen and tender to the touch but not warm. A 6 cm irregular, linear scar was present on the side of his thigh, healing with granulation tissue present.

Ahmed reported that his right thigh has been painful since the injury, but that the pain was now “only when [he] moved.” On physical examination, his right leg revealed a 22 cm surgical scar, healing well, along the middle of his lower leg.

Profile 8: Abdu Goffar, 18-year-old male

• Impairment: Shrapnel from explosive detonation resulting in metal being lodged in left eye and ear and a 6 cm-deep hole into skull through left ear. Treatment delayed due to violence.
• Disability: Unable to hear and see on left side; unable to feel due to facial nerve loss; difficulty with basic communication as a result of sight and hearing loss.

Abdu Goffar reported that around 5:30 p.m. on a Friday in August 2017, he was walking home from school with other students in his village of Thombajur-Kundpara when approximately 10-15 security forces armed with guns began shooting. Goffar reported feeling a fire and explosion on the left side of his face and head, and he fell into a field. Two other students were shot, one in the arm and another in the leg. Goffar lost hearing on the left side and had diminished vision in his left eye.

Goffar’s brother said that Goffar’s friends brought him back to the village. Goffar was not awake. That evening they fled. Goffar was unable to walk and was carried by his family into the forest, where they hid for about three days with other villagers. While in hiding, he saw a fire where the school had been located. Goffar’s brother said that Goffar had several pieces of metal lodged in his left eye and ear and that there was a lot of blood all over the left side of his face. He described a hole in Goffar’s ear and said he was able to stick his index finger into this hole, and estimated the depth to be about 6 cm. When he did so, he felt something hard beneath his finger. The family walked about one day to Bangladesh and Goffar was taken to a hospital, where he stayed for two months.

PHR Medical Evaluation

Goffar’s physical examination revealed a linear scar that is consistent with the temporal (temple) area craniotomy (surgical opening of skull) for removal of bone fragments. He had numerous scars consistent with a penetrating injury to his left ear. The multiple small scars on his face and ear were consistent with lacerations caused by impact of a sharp foreign body. His loss of facial nerve function and visual loss were highly consistent with an intracranial injury in the area of his left ear.

On inspection of Goffar’s face at rest, no gross asymmetries were noted. Extraocular motions (eye muscle movements) were grossly normal. Goffar had a dysfunction of the cranial nerve in distribution of the left cranial nerve VII (facial nerve), with asymmetry noted with weakness in wrinkling the brow, show-ing teeth, frowning, and an inability to close the left eye tightly.

On visual inspection of the left ear, Goffar had several, well-healed hypopigmented (lightened) scars of less than 5 mm linear along the antihelix (visible curved cartilage). His auditory canal was closed-over with flesh-colored skin. On inspection of the posterior (rear) of the ear, Goffar had a small flesh-colored nodule approximately 5 mm in diameter. He had a well-healed, hypopigmented linear scar approximately 1 cm anterior, inferior to the tragus (external part) of his left ear that runs superior to (above) his hairline. It is approximately 7 cm in length. There were approximately six hypopigmented linear scars bisecting the aforementioned scars at intervals approximately 1 cm apart. Inferior (below) lateral to his lower eyelid, he had a small depression of his skin.

Goffar’s left pupil had minimal reactivity to light, with afferent pupillary defect (minimized constriction of pupil) on the left, increasing from approximately 2 mm to 3 mm. His vision was grossly tested on left – with inability to identify two fingers held at a distance of 24 inches from his face. On examination of peripheral vision, Goffar was able to see an object at 45 degrees from the sagittal (midline) plane on the left side, and 90 degrees on the right side from the sagittal plane.

Profile 9: Saif Rafman, 22-year-old male

• Impairment: Gunshot wound resulting in the inability to use left leg. Treatment delayed due to violence.
• Disability: Unable to walk without crutches.

Saif Rafman reported that his village of Mirullah was attacked sometime in late 2017. He reported that he was at home sleeping, was awakened by the sound of guns, and came out of his house. He saw a couple hundred security forces and was immediately shot twice. One bullet hit him in the front of his right thigh and went through to the back; another bullet hit him in the back of his left thigh and came out of the front. He lost consciousness.

Rafman’s brother and a friend carried him to the forest, where he regained consciousness. They hid in the forest and along roads for seven days while making their way to Bangladesh. During this period, they saw many dead and injured people. In Bangladesh, he was seen at an MSF (Médecins Sans Fron-tières) hospital where he received surgery on both of his injuries and received both IV and oral medications.

Rafman reported having an iron rod inserted into his left thigh. The long surgical wound on the left thigh took about four months to recover. He reported that the left thigh injury still occasionally bleeds. His right hip had not gotten better. He could not use his left leg at all. He could not put any weight on this leg and it was very stiff. He used crutches to walk.

PHR Medical Evaluation

Rafman’s injuries were highly consistent with gunshot wounds to his right hip and to the back of his left thigh that have been medically and surgically treated. The length of time of recovery needed for this left thigh surgical wound seemed longer than normal and was concerning. The lack of range of motion and limited strength of his left leg were highly consistent with inactivity and lack of physical therapy post-injury. His left leg had visible muscle atrophy compared to the right. Measured difference of the circumference of the calf two inches from the base of the patella (kneecap) was more than 1 cm.

The anterior (front) of the left thigh had a nearly healed semi-linear, raised, hypertrophic (enlarged) and keloid (raised) surgical scar 13 cm in length over his femur. There were visible, well-healed suture scars bisecting the surgical scar. The proximal (close end) and distal (far end) parts of the surgical would were well-healed. In the middle of this surgical wound, there was visible granulated (growing) tissue that was moist and was contiguous with an oval lesion that was 4 cm in length and 3.5 cm in width with irregular borders. This wound had whitish granulated tissue forming, and it was moist with clear fluid at the medial (middle) aspect of the scar that is contiguous with the surgical scar.

On the lateral (outside) left thigh, there was a well-healed surgical scar 15 cm in length, the most proximal end (nearest) of the wound is contracted, forming an indentation.

He also had two scars distal to the left (away from) the lateral surgical scar, approximately 1.5 cm in length by 1 cm in width which are hyperpigmented (darkened). He had one scar proximal (near) to his lateral left thigh scar which is 1.5 cm by 1.5 cm.

Rafman could not actively raise his left leg from the ground and could not move side to side. With assistance he could minimally flex and rotate his hip. With assistance he could flex and extend his left knee but his range of motion was limited and his strength was decreased. His right hip and leg strength and range of motion seemed to be within normal limits.

Profile 10: Mohammad Esouf, 19-year-old male

• Impairment: Gunshot injuries resulting in limited use of right arm and hand, inability to use right fingers, atrophied left arm, and abdominal injury. Treatment delayed due to violence.
• Disability: Difficulty with any basic task involving prolonged walking or use of right hand.

Mohammad Esouf reported that security forces came to his village of Rajabill in the early morning hours of August 22, 2017. He was a student at the madrassa and was praying in the mosque when he heard gunshots. He ran back to his house. While running, he was shot twice. One bullet entered the middle surface of his arm near the elbow and exited his right elbow, and the other hit the left side of his abdomen. His father and brother helped carry him to the river and sheltered him in the forest for four days.

Esouf said the security forces stayed near his village for five to six days. One doctor came to him in the forest and gave him liquid to pour on his wounds, wrapped his wounds with cloth, and gave him some tablets. Esouf’s family left for Bangladesh and walked for ten days. Upon arrival, he was sent to an MSF (Médecins Sans Frontières) hospital, where he received surgery on both his right arm and abdomen. He stayed in the hospital for four months.

PHR Medical Evaluation

Esouf’s physical exam findings were highly consistent with his testimony. Esouf’s right forearm had visible atrophy compared to the left: its circumference was 4 cm less than the left forearm at the widest part of the forearm.

On the right arm, around the region of the ulna/medial epicondyle (ligament attachment) there was a 7.5 cm well-healed, rope-like scar from the medial epicondyle area to the upper arm, medially (in the middle). It was a hyperpigmented (darkened), hypertrophic (enlarged) scar and keloid (raised scar) formation. Some areas of the scar were purplish in color, and the 1-2 cm keloid formation extends medially from the main scar to the triceps region.

On the right arm, dorsal (underside) surface, lateral to the elbow joint was a well-healed, serpentine, surgical keloid formation, 7 cm long by 2 cm wide. Approximately five well-healed suture scars were visible, bisecting the surgical scar. On the right foreman, ulnar (elbow) side, was a raised circular scab about 1 cm long.

Esouf could externally/internally rotate his right elbow with difficulty. The digits of his right hand could not extend and were permanently contracted as compared to his left hand.

Esouf also had two visible scars on his abdomen. He had minimal pain after prolonged walking. His right arm took about four months to recover and he still had occasional bleeding from an area with a scab. He cannot use his right hand or arm very well.

Profile 11: Zoko Reah, 33-year-old male

• Impairment: Gunshot injury resulting in amputation of right thumb and limited range of motion in right hand and inability to make a fist. Treatment delayed due to violence.
• Disability: Difficulty with any basic tasks involving use of right hand.

Zoko Reah reported one day in late 2017, he and others were having tea in his village of Arobshapada when security forces stopped in front of his shop. He saw two military buses full of security forces. They started firing and Reah, along with 10-15 others, ran away. Reah was running with his hands closed in fists and was shot in the right hand. The bullet entered near the base of his thumb and exited between his first and second fingers. He lost consciousness. He was carried by others for two days until reaching Bangladesh.

When he arrived at the hospital, his thumb was black. Medical personnel amputated his right thumb and placed three rods in [his right hand] It took approximately three months for his right hand to heal, and he reports that he still cannot move right hand fully as he could before the injury.

PHR Medical Evaluation

Reah’s physical findings on this hand, digits, and nail plates were highly consistent with his report of a gunshot to his right hand and the medical treatment he received. His limited range of motion in his right hand is consistent with the location of the injury, lack of use and lack of physical therapy. He also has signs of diminished perfusion (blood flow) to the amputated digit.

Reah’s right hand had an area along the phalanxes (finger bones) that were hyperpigmented (dark), dusky appearing compared to his left hand.

He had an amputation of the right thumb, above the interphalangeal joint. The skin on the tip of the remaining distal phalanx (bone) of the thumb was shiny, atrophied and had darkened areas. The stump tip had three small wounds, 2-3 mm long, that appeared to be scabbing.

Reah had a linear scar, 9 cm in length, from the palm of his right hand, running medially to the thenar eminence (base of thumb) that ran to the dorsal (back) right hand, medial to the first digit metacarpal bone. The scar was hyperpigmented (darkened) on the palmar surface, and hypopigmented (lightened) along the dorsal surface, with three to four visible bisecting liner scars, 1 cm in length, resembling suture scars.

He had another prominent scar, on the dorsum (back) of the third digit proximal phalanx (finger bone), approximately 5 cm in length. It was contracted, hypopigmented (lightened) and its shape varied from almost linear (dorsum) to irregular borders (along lateral side of the third proximal phalanx). His fingernails of the second and third digits were irregular. The second digit nail plate was hypertrophic (enlarged), disfigured and discolored. The third digit nail plate had a transverse depression at the distal (far end) portion. He had decreased flexion of the digits of the right hand, with limited mobility of the distal (far end) and proximal (near end) interphalangeal joints of his second and third digits, and inter-phalangeal and metacarpal joint of his first digit. With his right hand, Reah could not make a fist.

Profile 12: Halek Husson, 26-year-old male

• Impairment: Gunshot injuries resulting in amputation of left leg, right leg injury, and bullet lodged in right shoulder. Treatment delayed due to violence.
• Disability: Difficulty with any basic task involving standing or walking.

Halek Husson was awakened by gunshots in his village of Mirullah one morning around 6 a.m. He came out of his house and saw 150-200 security forces. He started running away from his house. He was shot twice. One bullet hit his left leg, penetrating through and hitting his right thigh, while the other hit his upper right chest. He fell to the ground.

Husson’s brother carried him to the forest, where he saw many others injured like him. They traveled for six days to Bangladesh, and during that time he received no treatment. His leg was “black” all the way to his mid-thigh. In Bangladesh, he was referred directly to Chittagong hospital, where he stayed for about one month and had an above-the-knee amputation of the left leg.

Husson reported that it took about three months for the surgical wound to recover. He returned to the camp after one month. After returning to the camp, doctors removed the bullet that had penetrated his right upper chest and was lodged in his right shoulder area. He walks with crutches. He can stand on his right leg for a few minutes without the support of the crutches. He felt pain in his left leg after the above-the-knee amputation, mostly at night, but not every night.

PHR Medical Evaluation

Husson’s physical findings of his left thigh amputation, right thigh scar and right axillary (armpit) scar were highly consistent with his report of two gunshot wounds and the treatment that he received at the hospital.

He had a 2.5 cm long by 1 cm wide hyperpigmented (dark), hypertrophic (enlarged) scar in the region of the right arm/shoulder, in the area of anterior axillary (armpit) fold. Within the mid-axilla (armpit), Hussan had another scar, 2.5 cm by 1.5 cm, with irregular borders, discolored compared to other axillary skin. The scar was contracted and had no hair growth. These two scars were separated by approximately 4 cm.

There was a well-healed 17 cm scar across the stump of the amputated leg. The stump had no obvious swelling or deformity or pain upon palpation (touching) of the scar. In the right inner thigh, he had a scar that was 1 cm wide and 1.5 cm long. The scar was contracted and hyperpigmented (dark).

Profile 13: Shahid Usman, 23-year-old male

• Impairment: Gunshot injury to lower right leg resulting in inability to bear weight and walk normally and subsequent leg infection while fleeing. Treatment delayed due to violence.
• Disability: Difficulty with any basic tasks involving use of legs; cannot walk for more than 10-15 feet.

Shahid Usman stated that on the day of the attacks in his village of Mirullah, more than 100 security forces units arrived in trucks and drove down the main road of the village. They first burned the madrassa, then the market, and then homes. They used rocket launchers to set fire to homes, and shot at fleeing villagers.

Usman fled east to a paddy field and was shot in the right lower leg while running. He fell and was found by his uncles, who carried him to a nearby village to receive basic treatment including bandaging and some kind of injection. They decided to flee to Bangladesh. Usman was unable to walk and was carried by his uncles. They saw many burned homes, mosques, and vehicles along the way. En route, Usman’s leg became infected. Usman and his family arrived in Bangladesh and presented themselves at an MSF (Médecins Sans Frontières) clinic on August 31, 2017.

Usman was stabilized when he had arrived at the MSF Clinic, given food and clothing, and then sent to Chittagong Medical College (CMC) where he had surgery on his leg with an external rod attached. He also had a skin graft from his thigh to his shin.

PHR Medical Evaluation

Usman’s physical exam was highly consistent with his story of being shot while fleeing, with an entry point anteriorly (to the front) and exit wound posterolaterally (to the back and lateral) resulting in an open fracture and skin damage that became infected, requiring antibiotics for a prolonged period of time, surgery, and skin grafting. The patient may have a chronic bone infection that may result in inadequate healing at the site of the surgery. This is corroborated by recurrent infections and continued pain when walking, despite the surgery having been done five months prior to the evaluation.

Usman continued to use crutches and could only walk 10-15 feet. He continued to have severe pain and could not bear full weight on his injured leg. His leg had been warm, but had improved with antibiotics. He still had itching at the site of the scar on his leg. The site of his surgical scar and the site where the skin graft was taken appeared well-healed. There was a bulge protruding from the skin graft an there is a small ulceration with some yellow discharge on this examination

Profile 14: Anowar Sadak, 28-year-old male

• Impairment: Gunshot injuries to right shoulder and chest resulting in atrophy of right arm. Treatment delayed due to violence.
• Disability: Unable to work due to loss of use of dominant hand.

Before daylight on of August 26, 2017, Anowar Sadak was at home in his village of Mirullah when he heard gunshots. He went outside and saw that other homes in his village were burning. Myanmar security forces were moving through the village, setting fire to homes and shooting. Sadak lived on the edge of his village, and he fled to a nearby village with his family. They returned home one day later, only to hear gunfire again. Sadak ran away with his three young daughters, infant son, and his wife.

As he came to a rice paddy, he saw two trucks with 10-12 security personnel inside. He slid behind an embankment with his three girls and hid, waiting for the military trucks to pass. As he looked up to see if they had passed, he was shot in the right shoulder. He lost consciousness. He was later told that his six-year-old daughter traveled to the next village and told her uncles what had happened. They came and rescued Sadak. He received basic care in a nearby village, and eventually the family decided to go to Bangladesh, where they arrived on August 30, 2018.

He was referred to the hospital. He had x-rays done that showed that the bullet had entered his shoulder and ended up in the lower right chest area. He underwent two surgeries to remove the bullet.

PHR Medical Evaluation

Sadak’s injuries were highly consistent with his story and supported by medical documentation. He has lost function of his right arm completely. He had the bullet that caused this injury and x-rays confirming the bullet in his chest.

Sadak had an 8 cm lower and a 4 cm upper linear scar with suture marks from the first failed surgery to remove the bullet from his right chest. From his second surgery, he also had a 9 cm surgical scar posterior (behind) his right chest wall that appears well-healed.

He had a 4 cm by 2 cm linear scar with cross-hatching from removed sutures at the apex of his right shoulder. He also has a 10 cm by 3 cm raised keloid (raised), red scar on the lateral side of his upper right extremity.

Sadak had continued pain and aching in his right arm, and abdominal pain. He had no motor strength in his upper right arm and complete atrophy of all muscles. The only movement he can produce from this limb is from his shoulder. As he is right-handed his injury will prevent him from being able to work.

Profile 15: Bi Bi Zuhra, 40-year-old female

• Impairment: Beatings and stabbing with a knife resulting in wounds, elbow deformity, and limited right wrist function. Treatment delayed due to violence.
• Disability: Difficulty with all daily activities; limited ability to complete any basic tasks involving right hand.

On the morning of August 30, 2017, Myanmar security forces came to Bi Bi Zuhra’s village of Tula Toli. She saw helicopters. Rohingya residents fled to the river, but the security forces followed them. Men were lined up with children and security forces killed all of them, using guns and machetes. Her husband was killed in front of her, as were five out of six of her children (two boys and three girls). The men and children were put into mass graves and their bodies burned with petrol.

The security forces took Zuhra in a group of six women into a home by force. When she entered the home, she was hit on the head with a stick and knocked to the ground but remained conscious. Zuhra’s three-month-old baby was in her arms and when the girl was laid down next to Zuhra a member of the security forces sliced the infant’s throat.

The security forces tried to rape the six women in the house with Zuhra, as well as her, but the women initially fought back against this. The forces then beat the women severely, undressed them and raped them. Zuhra’s wrist was broken at this time. After she was raped, the man who raped her used a knife to cut her throat in two places. She was left to die. Many of the women around her were dead. The security forces left the women inside the house, closed the door and set the house on fire.

The fire took hold of the house quickly and Zuhra got up and grabbed a child (whom she believed to be her child) and ran out of the house. When she ran some security forces outside spotted her. They yelled at her, but seeing that she was bleeding, they let her go. She went into a house and put down the baby she was carrying and realized it wasn’t hers and that it was dead. Zuhra said she is haunted by the possibility that her baby was still alive in the house where she had been raped and that the baby had burned in the house. She went to the forest and stayed there alone for three nights. On the fourth day she went to a nearby village and spent one night in a home with a family. They gave her medicine and carried her to a small boat which transported her to Bangladesh.

PHR Medical Evaluation

Zuhra’s psychiatric exam, scars, and bony deformity on her arm were highly consistent with exposure to severe trauma, beatings and rape.

Zuhra appeared very distressed and became tearful at several points during the recounting of her story. She stated that she cannot sleep and was constantly thinking of what had happened.

She had two linear scars on the right side of her chin and neck. One was 4 cm long, the other 6 cm long. They were well-healed. The scars were consistent with knife wounds. Her right distal ulna (end of fore-arm) had a bony deformity consistent with a healed fracture which gave her limited wrist function in that arm.

Profile 16: Yasin Arafath, 17-year-old male

• Impairment: Gunshot injuries to upper right thigh and right hand with limited range of motion in right thumb and atrophy at base of thumb. Treatment delayed due to violence.
• Disability: Difficulty with any basic activity involving the use of the right hand.

In the early morning hours of August 26, 2017, Yasin Arafath heard gunshots in his village of Mirullah. He came out of his home, saw people running, and fled with his family. He took his father, who is blind, to safety in the field east of his home, as security forces came from the west. As he was going back home, he saw security forces shooting and was hit in the upper right thigh. He lost consciousness. At some point, he was also shot in the right hand but was unclear about how that had happened. Arafath was taken to another village, where someone took the bullet out of his thigh. He later regained consciousness but doesn’t remember the 20 hours he was in the village before waking up.

Arafath was brought to Bangladesh by his brother and another person with a makeshift stretcher. His legs were tied together for transport. They arrived in Bangladesh one day later, and he was taken to the hospital.

PHR Medical Evaluation

The scarring on Arafath’s thigh was highly consistent with his story. The scarring on his hand was consistent with his story as well, although it seemed unlikely this was a through-and-through wound as he had suggested. It is likely this was a wound through the flesh between the first and second fingers of the right hand with an associated graze or other wound. He had atrophy at the base of his thumb and a limited range of motion of the thumb, which will cause him long-term problems as he is right-handed.

Arafath had a 2.5 cm circular scar with raised edges and hyperpigmentation (darkening) in the lateral upper right thigh. There was a medial (middle) exit wound, with a 1 cm ovoid scar, where the bullet was lodged and cut out while the patient was unconscious.

Between the first and second fingers of his right hand, there was a 1.5 cm stellate (star-shaped) scar at the base of his thumb which limited the right thumb’s range of motion. On his wrist he had a 1 cm hyperpigmented scar. He had atrophy of the muscles at the base of his thumb, and limited strength and sensation with all range of motion over the right thumb.

Profile 17: Monzur Alom, 25-year-old male

• Impairment: Burns all over the body and shrapnel from explosive detonation resulting in loss of right hand function. Treatment delayed due to violence.
• Disability: Inability to work caused by extensive scarring and loss of function in wrist, making it impossible to hold objects.

Monzur Alom was a teacher at a mosque who lived with his wife and three children in the village of Tin May. One night at around 1 a.m. when everyone was sleeping, Myanmar security forces entered the village and began shooting guns. Alom and his family came out of their house and tried to flee. But Alom realized his 8-month-old son was still in the house, and turned back to get him. He saw the military shooting rocket grenade launchers at fleeing people and setting houses on fire. As Alom ran back out of his house with his son held to his chest, fire hit his son, killing him instantly. Shrapnel from the explosion hit Alom in the face and head. His face, hair, lips, ears, and beard were burned and he fell to the ground and lost consciousness.

After about an hour, the military left the village and Alom’s family carried him away. He spent one night in another village and one night in yet another village before the group left for Bangladesh, which they reached the next day. Alom reported burns to his hands and forearms, shrapnel injuries on his back, and burns on his stomach. He had lost the hair on his head and face. The rocket launcher shrapnel had hit his hands first but fire went all over and burned his whole body. He received medical treatment in Bangladesh.

PHR Evaluation

Alom’s injuries were highly consistent with a blast/burn from a frontal attack as described. The extensive scarring to his hands and wrists will make it difficult for him to work. He was unable to flex or make a fist with his right hand, making him unable to do fine motor skills such as hold objects, write, or chop.

His right arm and hand had extensive burns and scars with keloid (raised scar) and hypopigmentation (lightening) visible of the hand wrist, forearm, and upper arm. The dorsum (back) of the wrist and medial (middle) forearm had extensive scarring from burns, as did the upper arm on the right. The wrist burns were circumferential (around the wrist) and limited movement significantly. Alom had limited flexion/extension of his right wrist, with normal movement at the right elbow and shoulder, but was unable to fully flex or to make a fist with his right hand. There was atrophy of the intrinsic muscles of the right hand. He is right handed.

On his left side, he had extensive burns to his hand, forearm, and upper arm. Again burns were primarily on the dorsum (back) of the left hand with limited ability to flex and make a fist. He had atrophy of the intrinsic muscles of the left hand. The forearm, elbow, and upper arm had extensive burns, which limited flexibility of the elbow.

The top of left ear was deformed with evidence of healed burn. He has two keloid scars on his back: one is 6 cm by 2 cm overlying his right scapula (shoulder blade). The other is 2.5 by 1.5 cm overlying his left scapula. Alom also has two abdominal scars from burns, on his right abdominal flank and lower abdomen. On the right abdominal flank there is a faint triangular hyperpigmented (dark) area, 10cm by 5cm. Adjacent to that and lower on the abdomen on the right is a 9cm by 2cm hyperpigmented and faint scar. Alom also had a burn to his lower leg: a 13cm by 6cm hyperpigmented (dark) well-healed scar with one small area of keloid.

Profile 18: Salim Uddin, 18-year-old male

• Impairment: Gunshot injuries to both legs resulting in limited movement and function. Treatment delayed due to violence.
• Disability: Difficulty walking resulting in lack of ability to resume work as a farm laborer.

Salim Uddin worked as a farm day laborer and lived with his parents, five brothers, wife and son in the village of Chita Para. In late afternoon on a day in late August 2017, Uddin’s extended family was at home and saw nearby houses burning and guns being fired. They fled the house and saw military personnel in dark green uniforms shooting and burning houses.

As Uddin was running toward the mountains, he was shot in both legs. He felt pain immediately and then lost consciousness. He was carried to Bangladesh on a makeshift stretcher and received some injections on the way from a local Rohingya healer. He arrived in Bangladesh after four days of travel and was given medical care.  

PHR Evaluation

Uddin’s injuries were consistent with receiving gunshot wounds in both legs. He believed the bullet entered and exited on the right and grazed his left leg. He had some type of surgery in Bangladesh but could only state that they “scraped” some of his bone on his left side. He had no records, and no clear description or understanding of the surgery.

He had a 1 cm circumferential (surrounding) scar on this right upper outside thigh that is believed to be an entry wound and a stellate (star-shaped) four by 3-4 cm scar on the upper inside thigh. The scars were healed.

He had a 14 cm scar on his left upper inner thigh, with signs of sutures. The scar was well-healed and appeared to be post-surgical. He did not know what type of surgery was performed.

He could not move his legs normally and had difficulty walking.

Profile 19: Yacub Uddin, 20-year-old male

• Impairment: Gunshot injury to left hand resulting in muscle atrophy and decreased sensation. Treatment delayed due to violence.
• Disability: Loss of left hand function resulting in inability to return to work as a laborer.

Yacub Uddin was a daily laborer who brought firewood from the mountain to sell in his village, Don Gu Lar. He lived with his mother, three siblings, and a niece. He was asleep at home when he heard shooting from another hamlet. Before the sun came up, security personnel surrounded Uddin’s own hamlet and began shooting.

Uddin had left his house to go to the mosque and pray. When he left the mosque, he saw that houses were on fire and the security forces were moving toward his house and burning homes on the way. Rakhine Buddhist civilians were also participating in the attack. Villagers came out of their homes and fled. Uddin joined them and went into the mountains, spending a day there to see if the situation would improve. The next day after the sun came up, they saw the situation in the village had only gotten worse, and they decided to flee to Bangladesh. Uddin said there were some 3,000 people in this group.

About three kilometers from Bangladesh, the group encountered the military and a mob. The military shot at them, and Uddin was shot in the left hand. He wrapped a cloth around his hand, but he was in intense pain and lost consciousness. When he regained consciousness, he was near Bangladesh and made it safely across the border, where he received medical treatment.

PHR Evaluation

Uddin’s injuries to his hand were consistent with his narrative. He had a linear scar on the left hand palm surface just below the wrist. The 5 cm scar was located at the crease between the wrist and hand. There were no scars on the back of the hand. He had decreased sensation in digits one to four on his left hand. He could grasp with that hand, but it was difficult. He had general weakness of the intrinsic muscles in that hand and decreased nerve sensation.

Uddin stated that the wound to his left hand was a graze wound, without the bullet lodging. He is right handed but will have difficulty working with his left hand.

Profile 20: Akram Hassan, 18-year-old male

• Impairment: Gunshot injury to chest resulting in difficult sitting and lifting objects. Treatment delayed due to violence.
• Disability: Loss of ability to sit and lift objects resulting in inability to return to work as a farmer.

Akram Hassan lived with his parents and worked the fields of the farm they owned in the village of Don Gu Lar. One night on or around August 25, 2017, Hassan and his family were asleep at home at 3 a.m. when they heard far-off gunshots. They woke and went to the mosque to pray. On their way home they saw that their village had started burning. Hassan went to see what was happening. He saw fire and recognized those shooting guns as military and Border Guard Police. Rakhine Buddhist civilians were also participating.

Hassan went home to get his parents, including his disabled father. While carrying his father Hassan was shot in the chest, and they fell to the ground. He lost consciousness.

Neighbors came to get him and carried him in a makeshift stretcher to a neighboring village, where he regained consciousness. A local Rohingya healer gave him injections but he remained in severe pain.

He and his neighbors traveled through several villages to the river ferry that would take them to Bangladesh, and reached Bangladesh the next day. Hassan received medical treatment at an MSF (Médecins Sans Frontières) clinic and was then taken to a hospital for an operation.

PHR Evaluation

Hassan’s injuries were consistent with his narrative. He had a 1 cm by 0.5 cm linear scar where the bullet entered below with right axilla (armpit area). This scar was well-healed.

He had an ovoid, depressed scar, 3 cm by 2 cm in his left lateral (outside) neck where the bullet exited. The scar was well healed. There was a 1 cm hyperpigmented (darkened) scar on his upper back, medially (middle), where a drain was placed and there was a small circular scar.

Hassan was disabled; specifically, sitting was difficult, lifting objects was difficult, and working was not possible.

Profile 21: Shawm Shida, 38-year-old female

• Impairment: Gunshot injury to left hand resulting in ongoing pain and inability to grip. Treatment delayed due to violence.
• Disability: Loss of left hand function resulting in an inability to return to work as a farmer.

Shawm Shida worked on her family farm and taught Arabic to children. She lived with an extended family of nine in the village of Chin Kali. At 6 a.m. on August 25, 2017, Shida first heard the sound of gunshots. When she left her house, she saw other houses on fire. Border Guard Police and military started to shoot and burn everything and people were running everywhere. Shida gathered her family and ran toward the mountain.

Before reaching the mountain, Shida was shot in the left hand. She had a great deal of pain but was able to receive an injection from a local healer. When they encountered the military, they hid in the mountains again. They spent one day there before walking north. They walked for twelve days before arriving in Bangladesh.

PHR Evaluation

Shida’s injuries were highly consistent with her narrative of being shot in her left hand.

On her left hand, the entry and exit wounds were unclear. She had a 1.5 cm circular wound on the dorsum (back) or the hand below the second and third digit mid-hand. Between the first and second digit there was a small scar in the fold. Her sensation was decreased over distal (end) third digit over the dorsum, but otherwise strength and sensation were grossly intact. She had a weaker grip in her left than her right hand.

She continued to have pain in her left hand and had sensory changes (evidence of nerve injury), including tingling, if she held something.

Profile 22: Yasmin Ara, 3.5-year-old female

• Impairment: Shrapnel from explosive detonation injury to right (dominant) hand resulting in inability to use it. Treatment delayed due to violence.
• Disability: Loss of function in dominant hand resulting in an inability to feed herself.

Yasmin Ara’s father worked as a fisherman, and she lived with her parents and two siblings in the village of Chin Kali. Her mother recounted that on August 25, 2017, the family was sleeping when they heard gunshots and explosions. As the gunfire got closer, Ara’s mother carried her out of the house and ran toward the mountains.

While running, Ara’s mother saw explosions and houses burning, and a piece of shrapnel from a rocket launcher hit her daughter. Ara began bleeding and had injuries in three places on her arm, and also was hit by a small piece of shrapnel in her right foot.

In the mountains, they treated her with herbal remedies. The bleeding stopped and one or two days later, the injury became enlarged. After the bleeding stopped, some pus exited the wound. The family stayed in the mountains for 15 days, returning occasionally to the hamlet to get food. Ara’s mother took care of her and cleaned her wound two or three times per day. Eventually relatives helped carry Ara to Bangladesh, where she received medical attention.

PHR Evaluation

Ara’s injuries were consistent with the narrative recounted by her mother that she was injured by fire from a rocket launcher. Ara could open and close her right hand but not fully, and could not eat rice with that hand. She was right-hand dominant and was learning to eat with her left hand.

On the dorsal (top) aspect of Ara’s right forearm there were two scars that both were deep skin and muscle defects. There was a 1 cm circular and hyperpigmented (darkened) area and a 3.5 cm by 1 cm loss of brachioradialis (a muscle of the forearm). She had an incomplete ability to supinate (turn up) hand, and it was held in pronation position.

There was missing muscle flesh (brachioradialis and other muscles of forearm) 5cm by 3.5 cm into the antecubital fossa (elbow pit).

The scarring on Ara’s right arm was severe, and a large portion of muscle was missing from her forearm, which made it impossible for her to supinate this hand. She will never have full use of this hand and arm, and the disability is expected to worsen with age as the scar grows larger.

Profile 23: Abdul Salam, 33-year-old male

• Impairment: Shrapnel from explosive detonation causing left eye injury resulting in loss of sight and injury to back of neck resulting in ongoing pain. Treatment delayed due to violence.
• Disability: Unable to accomplish basic tasks, lift and carry bags of rice, and work.

Abdul Salam’s village of Tin May is located near a military camp, and personnel from the camp came to the village two days prior to the attack. They told villagers not to leave their homes at night and to inform them of any “terrorists” living in the village. They entered houses at random asking for everyone who lived there. If the male of the house was not present, they asked to see his identification papers and wrote down his name as being part of Arakan Rohingya Salvation Army.

Around August 25, 2017, at 11p.m., Salam woke up to the sounds of shooting. He ran outside with his seven-month-old daughter and fled toward the mountains. People around him were shot as they ran. An explosion hit his infant daughter, killing her. He was hit by shrapnel from the explosion and a bullet scraped the back of his neck. He could not see from his left eye after the explosion. He and other villagers hid during the night.

When the shooting stopped in the morning, the villagers saw military personnel leaving the village. They made their way home and found 30 people who had been killed by gunshots or knife wounds. They attempted to bury the dead bodies but saw military personnel returning and shooting, so they left the dead bodies and ran away.

Salam reached Bangladesh in three days. Other people had to help him walk up and down hills. In Bangladesh, he received medical care.

PHR Evaluation

Salam had physical findings highly consistent with injuries described in his testimony.

On the left side of his neck he had a raised, slightly hypopigmented (lightened) oval lesion with darker regular borders, approximately 2 cm by 0.5 cm.

On the back of his right arm he had a smooth rectangular scar with some irregularity and contracture.

Salam was told by doctors not to lift heavy things because of his neck wound, where he still had pain. This prevents him from working as he was a farmer and does not know how to do anything else. This also prevents him from helping to pick up food such as bags of rice as he cannot carry them.

He did not have records from his visit to Ukhiya hospital but states that they did X-rays and gave him treatment. They explored the wound on the neck to ensure there were no remaining foreign objects. His eye injury was also treated and he could see from the left eye but he continues to have problems with his eyesight when exposed to gas or heat.

Profile 24: Mohammad Kabir, 24-year-old male

• Impairment: Gunshot injuries to both legs and right buttock resulting in ongoing pain, PTSD, and gait disturbance. Treatment delayed due to violence.
• Disability: Unable to walk long distances and work.

Mohammad Kabir was a wood carver and also farmed. He lived with his wife and three children in the village of Gu Dar Pyin. Sometime around August 25, 2017, the military entered his village and started shooting and throwing explosives. Kabir and his family fled to another village. Kabir and other young men periodically went back to their village to check on the situation. While doing so, they saw Rakhine Buddhist civilians looting the market and homes. Myanmar security forces then started shooting at the men, who attempted to flee. Kabir was shot three times in both legs and his right buttock. He remembers people carrying him to another village, but he lost consciousness during this time. After regaining consciousness, he saw his village and the market burning.

Kabir was then taken to a clinic at a nearby village, where he was given an injection and medicine for his injuries. He stayed there for 15 days in hiding and continued to receive care, until villagers told him the military was looking for people with bullet wounds and that it was not safe for him to stay there. He decided to flee to Bangladesh. People carried Kabir while his family followed on foot. The journey took six days.

PHR Evaluation

Kabir had physical and psychological findings highly consistent with injuries and abuse described in his testimony. His neurovascular exam revealed damage to vasculature and nerves on the right lower extremity consistent with injuries described. His scars were consistent with injuries described. His psychological evaluation was highly consistent with PTSD and depression. Kabir had a gait disturbance (abnormalities in walking and balance). His gait was antalgic (pain-avoiding). He had difficulty ambulating for long distances. On his right thigh he had a circular, raised hyperpigmented (darkened) scar approximately 1 cm in diameter and a circular slightly raised hypopigmented (lightened) scar with uneven borders, approximately 1 cm in diameter. He also had a circular, raised hyperpigmented scar approximately 1 cm in diameter on his left thigh and an irregularly shaped raised hypopigmented scar with hyperpigmented borders, approximately 1.5 cm by 0.5 cm on his right buttock.

Profile 25: Abu Tayub, 25-year-old male

• Impairment: Shrapnel from explosive detonation resulting in injury to left arm and loss of function in left hand. Treatment delayed due to violence and treatment delayed in Bangladesh also.
• Disability: Unable to work due to loss of hand function.

Abu Tayub was a farmer and said he was financially well off. On August 25, 2017 at around 2 p.m., four or five military personnel entered his village of Gu Dar Pyin on motorbikes. Half an hour later, 100 military personnel, 50 Border Guard Police, and 30-40 Rakhine Buddhist civilians followed.

Tayub was at home when the security forces started shooting and throwing explosives. He ran outside, but while running he was hit on the left arm by shrapnel from a mine that exploded nearby. In the group of 17 people running with him, five died and two were injured. He managed to hide in the forest.

From the forest, Tayub could see houses burning with people inside. He saw Rakhine Buddhists slitting the throats of those who were injured but not yet dead and saw them stealing cattle and items from houses. He saw a grave with some 100 bodies in it. He stayed in the forest for three days. Then he traveled to a nearby village where he stayed for seven days, receiving some elementary medical treatment from a shop. But security forces arrived and threatened to arrest anyone who was not from that village, and Tayub decided to flee to Bangladesh. He traveled for one day to the river and then caught a boat. He was unable to walk due to the injury, and was carried throughout the journey by two people. In Bangladesh, he did not receive adequate medical care for three months. Ultimately, he had a surgery to reattach a broken bone and a skin graft.

PHR Evaluation

Tayub had injuries highly consistent with a blast injury followed by delayed treatment. Tayub was now disabled and had no function of his left hand. He was unable to farm due to the injury and would not be able to use his left hand in the future to farm.

He had a healed skin graft lesion on left forearm, loss of function of the left wrist and left hand as well as malunion of his left distal ulna (forearm bone). Existing medical records revealed that he had been treated with radial debridement (removal of tissue) and a forearm split thickness skin graft. He required this treatment after having an open wound for three months without adequate treatment.

He had no active ROM (range of motion) of his left wrist with minimal passive movement (by the examining doctor) laterally and medially. He had some active movement of his fingers but no grasp.

Tayub had a large lesion on his dorsal (top) left forearm extending from the wrist 14cm proximally towards the elbow, with a width of 5cm. There was a loss of subcutaneous tissue throughout the lesion, with the lesion indented. There was a thin epidermal layer.

Profile 26: Anowar Hussein, 14-year-old male

Impairment: Gunshot injury to right shoulder resulting in limited range of motion and inability to lift arm 90 degrees; depression and anxiety. Treatment delayed due to violence. Disability: Unable to carry out any basic tasks involving use of right arm or resume work handling cattle.

Anowar Hussein lived with his parents and worked watching cattle owned by others. Around August 25, 2017, Myanmar security officials entered his village of Gu Dar Pyin and started shooting. Hussein was playing cane ball and many villagers were watching when the security forces began attacking. Hussein ran into a nut garden and was shot in the right shoulder as he ran. From there, he saw houses burning. He saw a helicopter dropping explosives, and saw four or five Rakhine Buddhist civilians, one of whom was beating and killing people, while the others looted Rohingya houses. Hussein saw people who were injured but not yet dead having their throats slit.

The shooting continued for a few more hours. After it stopped, Hussein ran into the forest where his family was. They put turmeric on his wound and stayed in the forest for seven days before traveling to a nearby hamlet. After 15 days, they moved on to another hamlet but were told by security personnel there that those from other villages would be killed if they stayed. Hussein’s family left for Bangladesh. It took them six days to get there, and Hussein walked with the support of his younger brother.

PHR Evaluation

Hussein had physical scars highly consistent with bullet entry and exit wounds. His psychological symptoms were consistent with a diagnosis of depression and anxiety.

He had limited ROM (range of motion) of his right shoulder, with limited external and internal rotation, and limited abduction (difficulty raise arm above 90 degrees). His right upper extremity was weaker than his left upper extremity. The area around his injury was sometimes itchy and it hurt if someone pushed on it.

He had an oval, smooth hyperpigmented (darkened) scar approximately 3 cm by 2 cm on his right back shoulder and a somewhat irregular, circular hypopigmented (lightened) scar with hyperpigmented borders, approximately 1 cm in diameter.

Profile 27: Faizal Islam, 28-year-old male

• Impairment: Gunshot injury to left arm resulting in inability to grasp and hold objects in left hand. Treatment delayed due to violence. Disability: Unable to resume work as farmer due to difficulty with any basic tasks involving use of left hand.

Faizal Islam was a farmer and lived with his wife and two children in the village of Don Gu Lar. On August 25, 2017 at around 3 a.m., Islam was at home asleep when he woke up to the sound of shooting and explosions in a village near his, which borders a Border Guard Police camp. At around 4 a.m., Islam heard people from that village fleeing into his hamlet.

At around 6:30 a.m., after praying, he saw Myanmar security forces entering his hamlet. He saw homes burning and saw the security forces shooting and torching houses. All of the villagers began fleeing and many were killed. Islam believed some 200-250 people had died based on the number of bodies he saw.

Islam was shot in the left hand as he ran. He held onto the wound and kept running into the hills, where he stayed for five-six days with fellow survivors. After six days Myanmar security officials entered the forest and so the villagers were forced to flee to Bangladesh. It took them five days to get there, and Is-lam was taken to the hospital upon arrival.

PHR Evaluation

Islam had well-healed scars on his left dorsal (back) hand and left volar aspect (palm side) of his wrist that were highly consistent with a bullet entry and exit wounds as described in the narrative. Neurological exam reveals damage to both sensation and motor function as a result of the injury. His description of his psychological symptoms was highly consistent with PTSD and depression.

He had limited range of motion of his wrist. He has decreased sensation and strength in his left hand that would affect his ability to work. He is unable to grasp and hold objects with his left hand.

He has an irregularly shaped and colored partially-raised lesion, approximately 2.5 cm by 0.5 cm on his left volar wrist. He also has an irregularly shaped, hypopigmented (lightened) lesion approximately 1 cm by 0.5 cm on his left dorsal mid-hand.

Profile 28: Abdu Shukkur, 19-year-old male

• Impairment: Gunshot injury to arm resulting in loss of majority of function of right (dominant) hand. Treatment delayed due to violence.
• Disability: Unable to resume work as day laborer due to loss of function in right hand.

Abdu Shukkur was a daily laborer who did farming and fishing in his village of Kyaunk Pan Du. He was sometimes called to work without pay at a nearby police camp. If someone could not go when asked, the police took money from them and sometimes beat them.

Around August 25, 2017 at 8 a.m., Shukkur was in his house when Myanmar security forces surrounded his village and started shooting. He ran out of the house toward the forest and was hit in the arm. He saw the bullet, which was golden, hit the ground. He continued running into the forest, and once there, he tied his arm in a sling. From the forest he saw that his home was burning. His family stayed in the forest for six-seven days, and then they fled to Bangladesh. The journey took them 24 hours.

PHR Evaluation

Shukkur had physical wounds consistent with an injury from a large bullet. Due to the extent of the internal damage, he had lost most of the function of his right (and dominant) hand. He could not grasp or hold things with his right hand and could not eat with his right hand. He continued to have pain. His psychological symptoms were highly consistent with ongoing depression and anxiety.

Shukkur’s right wrist had a decrease in flexion and some in side-to-side movement. He had decreased sensation to touch below the injury and decreased strength in his right upper extremity. He also had decreased external and internal rotation of right shoulder.

His right elbow had limited flexion and he was unable to fully extend his elbow. He has some active movement of his fingers, but with weak grasp.

He had an oval, indented, atrophied scar approximately 4.5 cm by 1.5 cm on his right upper extremity.

Profile 29: Sayed Amin, 35-year-old male

• Impairment: Gunshot injury to right lower shin resulting in difficulty walking and decreased sensation. Treatment delayed due to violence.
• Disability: Unable to resume work as a farmer, shop owner, and teacher due to difficulty with walking.

Sayed Amin attended a religious school, worked as a religious teacher, and also had a small shop and farm where he worked with his brothers in the village of Kyaunk Pan Du. One morning at approximately 11 a.m., on or around August 25, 2017, villagers were farming in the paddy field when they saw the military coming from a security camp nearby. The farmers informed the other villagers that the military was coming and they needed to hide.

Amin was in the shop when the farmers arrived. He closed his shop and went home, but his family had already left. He entered his house to take clothes and things for his children. Within minutes, the military was moving through the village. When they reached the center of the village, they started shooting. Amin started running along with many others.

Nine villagers from the group Amin was running in were shot and died. Amin was hit by a bullet as he ran, and he felt a bone break as he fell. He was hit when he was already out of the village, so the military didn’t see him. He was able to call his brothers with his mobile phone, and when the military left, his brothers came and carried him to the forest, where the rest of his relatives were. They stayed there for nearly 10 days until the security forces returned to an area near the forest. The villagers then decided to flee to Bangladesh, arriving there two days later.

While still in Myanmar, Amin had used betadine and septadine from a village medicine shop to clean his wound and also got some medicine to reduce pain. He also used some leaves on the wound. In Bangladesh, he was sent to the hospital and was there for over one month for a surgery on his leg.

PHR Evaluation

Amin had physical scars highly consistent with bullet entry and exit wounds. He was disabled by his injury, could only walk with a limp, and had decreased sensation on his right lower leg. His medical record indicated that he underwent a right ORIF (open reduction and internal fixation). He had two x-rays from October 2017 and April 2018 which revealed the metal rods placed to fixate a broken femur.

On his left lateral thigh, he had an oval, slightly scaly scar with hyperpigmented (darkened) borders, approximately 1 cm by 0.5 cm. He also had a circular, hyperpigmented scar on his left medial (middle) thigh, approximately 0.5 cm in diameter.

On his right lateral thigh, he had a hypopigmented (lightened) scar extending distally (downward) to the knee. He also had on his interior right thigh a circular scar, with slight indentation, hypopigmented with hyperpigmented borders, that was approximately 2 cm by 1.5 cm.

He also had an irregularly shaped scar, hypopigmented with hyperpigmented borders, approximately 5 cm by 2 cm on his right lateral posterior thigh.

Profile 30: Azizul Hauqe, 17-year-old male

• Impairment: Gunshot injury to back resulting in pain after speaking and eating and difficulty with basic tasks. Treatment delayed due to violence.
• Disability: Unable to resume work as fisherman and farmer due to pain from injury.

Before the attacks, Azizul Hauqe’s main activities were fishing and farming. He was at home sleeping with ten other family members in his village of Allay Than Kyaw around 11 p.m., when his mother began shouting that the military was coming. Hauqe heard gunshots and ran out of the house. He recognized the military’s uniforms. As he ran he was hit by a gunshot in the back, and the bullet came out on the right side of his body. He lost consciousness and woke up in the bushes sometime later. His brother then took him near a river.

When the military left the area, his brother carried him to Bangladesh. Hauqe was awake but was not speaking. Upon arrival in Bangladesh, Hauqe was taken directly to the hospital and spent one month there. He received IV drips and wound packing, but no surgical treatment.

PHR Evaluation

Hauqe’s two lesions suggested a through-and-through gunshot wound, consistent with his narrative. The distinct borders of the wound on his lower right back were typical of an entry wound. The exit wound was cleaner than in similar cases, but that can depend on bullet type and proximity.

Hauqe could not walk for long distances. He had pain where the gunshot wound was, especially when he talked for a long time or had a full stomach. He ate only small meals and ate slowly.

On his right lower back, Hauqe had a well-healed 1.5 cm by 0.5 cm wound, oval in shape, with distinct hyperpigmented (darkened) borders and a raised linear scar, paler than the wound, within the center of the lesion.

On his right chest wall, in the lower thoracic region, intercostal region around the seventh or eighth rib, lateral to midline, there was a well-healed 1.5 cm by 1 cm irregular-shaped lesion of unclear superior borders.

There was no paresthesia (tingling sensation) in the area of both wounds. Hauqe did report pain with palpation (touching the area) along the area of both wounds. He reported pain in the area of the wound while extending his right arm more than 120 degrees.

Profile 31: Hafsa Baegum, 30-year-old female

• Impairment: Beating to lower back while six months pregnant resulting in miscarriage with prolonged uterine bleeding; two inch deep knife wound in neck; limited use of right arm and hand due to injury from beating. Treatment delayed due to violence.
• Disability: Unable to carry out domestic activities or perform basic tasks due to difficulty with all basic tasks involving use of right hand and arm.

The military entered Hafsa Baegum’s village, Allay Than Kyauw, at around 9 a.m. on a Saturday. She was washing clothes near a well and could see them coming. She watched from a distance as the military looted the shop where she worked. She went home, but the military soon arrived there, detaining her and her four children. A soldier grabbed her hand and twisted her arm, injuring it. He then kicked her in the back and she fell to the ground. Baegum said she saw the security forces take an old man into the street and kill him by stabbing him multiple times in the stomach and then shooting him.

The women were gathered together in a place near the school. The security forces then chose some women and took them, including Baegum, to a narrow street. They took her shawl and threw it away, and put a knife to her neck. She called on Allah to save her, despite soldiers’ demands that she stop. A soldier kicked her forcefully in the lower back. Eventually one soldier came and took her back to where the rest of the women were. While Baegum was being taken to the narrow street, she saw the military kicking, holding, punching, and beating women with guns. At around 3 p.m., the military burned down houses. Baegum found her family and fled toward Bangladesh, where they arrived three days later. She was six months pregnant during the attack and when she left for Bangladesh, and was bleeding all through the journey there. She had a miscarriage at a hospital in Bangladesh, and bled for about 40 days after.

PHR Evaluation

The injury to Baegum’s right arm was highly consistent with an acute traumatic injury of ulnar (forearm bone) side of wrist in the region of the flexor capri ulnaris (forearm muscle) and its tendon. She did not receive any care for the injury. She now had only limited use of her right arm. Her husband has had to take over various domestic duties, such as cooking and cleaning.

The knife wound/injury was about two inches deep. It took about 15 days to close. The doctor gave her cream and no surgery.

On her right chest, above the right breast, there was a well-healed, skin-colored, hypertrophic (raised) lesion, 1 cm by 1 cm.

On the right forearm/right arm, when in a supinated (turned) position, there was a visible soft tissue mass along the ulnar side of the wrist, no ecchymosis (discoloration) visible, no laceration, and mild pain on palpation (touching).

On her right hand, the thenar and hypothenar eminence (thumb area) appeared atrophied as compared to her left hand (she was right-handed prior to this injury). As she attempted to pronate (turn palm down) her right hand, the subluxation of the presumed flexor carpi ulnaris tendon was palpable and visible. Upon pronation of her hand, her right-hand deviates radially. She had obvious weakness as she attempted to pronate her hand: there was suspected injury to the flexor carpi ulnaris.

Baegum’s right hand had decreased strength and her right wrist has decreased flex and extension. Sensation was grossly intact.

Profile 32: Ramzan Ali, 50-year-old male

• Impairment: Gunshot injury to left arm resulting in permanent contraction of fingers on left hand. Treatment delayed due to violence.
• Disability: Unable to return to work as farmer and fisherman due to difficulty with all basic tasks involving use of right hand and arm.

Ramzan Ali was a farmer and fisherman and lived with his wife and seven children in the village of Kyaunk Pan Du. Early in the morning on August 27, 2017, they were awoken by the sound of gunshots. He and his family ran away from their hamlet alongside other villagers. While running, Ali saw an estimated 60 military personnel. He was shot from behind in the left arm and fell to the ground. He lost consciousness, but his children carried him to the surrounding hills. When he recovered consciousness, he heard from others that 10 other villagers had been killed in the attack.

They stayed in the hills for three days, until the military entered the area and started shooting and firing rocket launchers. Ali’s family started running and decided to head toward Bangladesh. They walked seven to nine days until they crossed the border, at which point Ali was admitted to the hospital for two months, receiving treatments and skin graft surgery to his left arm.

PHR Evaluation

Ali’s injuries to his left arm and hand were consistent with his narrative of being shot. On his left hand, his fingers remained contracted, and are assessed to remain like this permanently, with loss of function of the hand. On his left ventral (front) forearm, there was a well-healed wound, approximately 9-10 cm in length and 2.5 cm in width, with well-demarcated thickened, cord-like raised borders. The skin within the border was without obvious hair growth but hair follicles were present. The more proximal (closer) portion of the wound had a linear appearance of about 1.5 cm. On his left dorsal (underside) forearm he had a semi-stellate (star-shaped), well-healed, pale lesion that is 2 cm by 1.5 cm large.

Profile 33: Rashid Ahmed, 30-year-old male

• Impairment: Shrapnel from explosive detonation resulting in left leg injury.
• Disability: Unable to continue work as a farmer or handle cattle due to leg injury.

Rashid Ahmed worked as a farmer and owned a number of cattle. One day around noon Ahmed, who was at home in his village of Gu Dar Pyin because of government-imposed movement restrictions, heard gunshots. He and others left their houses to see what was happening. Some were shot immediately, while Ahmed and others attempted to flee Myanmar security forces, who they could see some distance away. As they ran across a field, some people stepped on landmines. Ahmed saw three people near him step on mines and die immediately.

At the border of the hamlet, there was a small river which fleeing villagers, including him and his family, were able to cross by boat. When Ahmed re-crossed the river to give the boat to others, he was shot or hit by shrapnel in his left thigh and fell down near the edge of the river. He found a banana tree trunk and was able to use it to get back across the river. He hid in some bushes on the other side of the river and lost consciousness. When he woke up several hours later, he saw that everything in the village had been burned.

Ahmed stayed on the other side of the river for about one month and received some treatment for his injury. He was then reunited with his family and they decided to leave for Bangladesh, joining a large group of people who were traveling there. They faced continued harassment by the Myanmar security forces along the way. They reached Bangladesh eight days later.

PHR Evaluation

Ahmed’s injuries to his left thigh were consistent with his narrative of being hit by a gunshot or shrapnel. He still faced daily pain in the area, especially when carrying something. He could not work like he did before.

On his lateral (outside) left thigh, he had a 0.5 cm by 0.5 cm circular, skin-colored lesion with distinct borders.

On his left medial (middle) thigh he had a 1.5 cm by 0.5 cm lesion, hyperpigmented (darkened) around its borders, shiny-appearing, contracted and depressed.

Profile 34: Rabia Basri, 21-year-old woman

• Impairment: Gunshot injury to left leg and right arm resulting in limited range of motion (inability to flex right knee) and atrophy.
• Disability: Unable to walk or bear weight on her left leg without crutches and unable to use her left leg when transferring from chair to floor.

Rabia Basri was at home with 14 relatives in the village of Chut Pyin when they heard gunfire and tried to run to the surrounding rice fields. Five of them were shot dead while trying to escape. Basri fell when she was struck in the left leg and right arm. She reported being in and out of consciousness while she lay bleeding. She recalled pretending to be dead when six or seven Myanmar security forces and Rakhine Buddhist villagers approached her. They stole her valuables and left her in the field, where she stayed well into the night until neighbors carried her to a nearby village. Two days later, Basri left for Bangladesh, where she underwent surgery on her leg with orthopedic external fixation.

PHR Medical Evaluation

The physical findings were highly consistent with Basri’s report of being shot while running.

Over her arm, a small round lesion on the antecubital fossa (interior crease of the elbow) connected to a 6 cm linear defect with suture scars on either side was highly consistent with a gunshot injury from a low velocity bullet that did not pass completely through the arm, and which resulted in extraction of a bullet and suturing (surgical closing of the wound) afterwards.

The lower leg displayed a group of scars consistent with a single bullet entry wound, causing fracture to the tibia and fibula, and subsequent surgical repair. A single 1 cm by 2 cm oval scar was apparent on the anterior/medial aspect of the tibia (large bone of the lower leg), approximately 8 cm below the patella (kneecap), with some blurring of the margin inferiorly, likely representing the entry wound of the projectile. Irregularity of the bone structure of both the tibia and fibula (large and small bones of the lower leg, respectively) is appreciable on palpitation of the scar. The lower left leg had a longitudinal surgical lesion with punctate suture scars on either side. The gastrocnemius and soleus muscles (calf muscles) of the left leg appeared grossly atrophied when compared with those of the right leg.

Basri could hold her knee at 120° but could not flex her knee more than 30° in any direction. The resultant atrophy and inability to walk likely reflects significant injury to the bones and the neurovasculature of the leg – most likely due to initial injury and subsequent underuse of her calf muscle. The limited range of motion of the knee joint was most likely an indirect consequence of the initial injury, due to lack of access to post-operative physical therapy. Basri now was unable to walk or bear weight without crutches; when transferring from a chair to the floor, she could not use her left leg at all.

Profile 35: Mohammed Isaq, 17-year-old boy

• Impairment: Explosive blast injury to right leg resulting in neuromuscular injury that has been unable to heal despite surgery.
• Disability: Unable to walk or bear weight without crutches and ongoing pain in right leg.

As Mohammed Isaq walked home from afternoon prayers, he saw his village of Chut Pyin being surrounded by Myanmar security forces and Buddhist Rakhine villagers. He then heard gunshots and security forces ordering people to come out of their homes. He sought shelter in a house, where he was then struck by a projectile shot from outside. The house was then set on fire and Isaq came out dragging his leg. He then hid by a pond until 4 a.m., when his father rescued him and took him to a neighboring village. Isaq also said the Myanmar military shot people, and Rakhine Buddhist villagers then stepped on and slit the throats of the injured. He also reported that the attackers set dead bodies on fire.

After remaining in a neighboring village for a week, Isaq began a 12-day journey to Bangladesh, where he was hospitalized for five months and underwent multiple surgeries with rods and screws in his leg. Six months later, he still could not bear weight on the injured leg and required crutches to walk.

PHR Medical Evaluation

The lesions present on Isaq’s right leg were highly consistent with an explosive blast injury, with multiple shrapnel scars and a long linear surgical scar to extract fragments and surgically repair his femur (large bone of the upper leg) with internal fixation.

The right anterior thigh displayed numerous linear scars on the lateral aspect of the mid-thigh, measuring 2 cm to 5 cm in length and slightly raised, indicating multiple blast fragment scars typical of a grenade injury. A single irregular 1.5 cm by 1 cm scar was present on the medial aspect of the thigh just superior to the patella (above the kneecap), with an irregular border, consistent with an exit wound from a fragment.

This leg also had a vertical linear surgical scar that started on the anterior thigh near the level of the iliac crest (highest part of the sacrum, also known as the “hipbone”) and extended down the anterior thigh ending inferolateral to (below and to the side of) the patella. This scar was approximately 40 cm in length, varying in width from 0.5 cm and relatively clean approximation (wound closure) to a hypertrophied (enlarged), poorly approximated, and 4 cm wider region near the patella. The surgical defect was consistent with internal fixation of the femur bone and the removal of shrapnel in certain places. A second line of sutures was present along part of the original surgical scar, indicating that this likely did not heal and required a second effort to close. Isaq’s continued pain, inability to bear weight, and reliance on crutches suggested that he suffered from significant bony and neurovascular injury that has not healed well, despite surgery.

Profile 36: Nur Asha, 20-year old woman

Impairment: Gunshot injury in left wrist with nerve injury, resulting in decreased sensation and feeling in her first, second, and third fingers. Disability: Limited function of and ongoing pain in fingers and wrist.

Nur Asha said that on the day of the Chut Pyin attack, four Myanmar security forces surrounded her house and ordered her to come out. When she came out with her four-month-old daughter and two-year-old son, they burned Asha’s house down

Asha managed to flee by running, but she and her son were shot when they reached the rice field. The bullet killed the child and then entered Asha’s left wrist. After she was shot, she said military came and kicked her three times to check whether she was dead. Asha lay in the rice field and estimated that she was surrounded by roughly 100 other women doing the same. She said her sister-in-law, lying nearby, refused to surrender her baby boy when the military tried to wrest him from her; they shot the mother dead, and, when the baby fell from her hands, they shot the baby as well. “The bullet entered the head and it didn’t exit.” Asha said scores of people were killed in the rice fields around her. “People died like small fish in a dried pond…. I myself alone, had to cross 25 dead bodies.” She made it to the next village and then walked approximately 11 days to reach Bangladesh, where she underwent surgery on her wrist.

PHR Medical Evaluation

Asha’s clinical exam was highly consistent with her report of a surgically treated low-velocity gunshot wound, such as one that would have been caused by a bullet traveling through her son before striking her.

An examination of her left hand showed a hyperpigmented and raised lesion extending from the radial side of the forearm to the dorsum of the wrist. The wound was approximately 8 cm long and 2.5 cm wide. It had jagged borders and areas of skin contraction, indicating that the scarring pattern was irregular, consistent with the injury being caused by a lower-speed projectile.

Asha had a grossly decreased sensation of her first, second, and third digits (thumb, index, and middle fingers) from the palm to the proximal interphalangeal (middle finger) joints, which was typical of a radial nerve injury. She rested her hands with over-flexion of the fingers and had limited range of motion and pain with active movement (moving her wrist and fingers herself vs the medical examiner) of the fingers and wrist.

Profile 37: Somaiya Akter, 9-year-old girl

• Impairment: Gunshot wound to the upper right leg with complications of an infection of the skin and soft tissue with suspected bone involvement.
• Disability: Requires a cane to walk and has significant pain when bearing weight on her leg with limited function of her right leg.

Somaiya Akter was at home with her mother (Profile 19), brother, and father when they heard gunshots and saw smoke coming from many nearby homes. They ran out of their house when it, too, was set on fire, and Akter’s father and brother were shot dead just 20 to 30 yards from their home. Akter was shot in the leg and could not continue running, so she stayed by the bodies of her father and brother. Myanmar security forces took Akter’s mother to one of the places where the military were gathering women. They hit her on her head and back with sticks, but she managed to escape and return to where her husband, daughter (Akter), and son were shot. Both Akter and her mother then fled into the fields and later spent 10 days traveling to Bangladesh, where Akter had surgery on her leg, which had become infected. Six months later, he wound had not healed properly and akter still had to walk with a stick. She reported no fevers.

PHR Medical Evaluation

The scars on Akter’s leg were highly consistent with her and her mother’s testimony. Akter’s right thigh had scars from bullet entry and exit lesions, and from surgical treatment. The mid-thigh reveals two bullet wounds: a 2 cm by 2 cm circular, well-healed entry wound on the posterolateral aspect (back) of the mid-thigh and an irregular 2 cm by 4 cm oval hypertrophied (enlarged) exit wound on the anteromedial aspect (front) of her thigh. Akter also had circular puckered wounds near the patella (kneecap) and at the superior aspect of the thigh, typical of surgical scars from an external fixator used to immobilize a leg after surgery. Akter required a cane/stick to walk and had significant pain when bearing weight on her leg. This suggested that she has gait disturbances which included abnormal walking and not being able to balance. Six months after the incident on the examination today, the exit wound which was open and has broken skin and had a slow drainage of purulent fluid and a red, inflamed appearance. This was evidence of an active infection which involved the skin and soft tissue with suspected bone involvement. An infection of the bone can further reduced her leg function, worsen leg pain, and contributed to permanent disability.

Profile 38: Sayed Alom, 21-year-old man

• Impairment: Gunshot wound to lower left leg with the need for surgery.
• Disability: Requires a cane to walk and has persistent pain.

Sayed Alom ran out of his home when he heard shooting and yelling and ducked into a neighbor’s home as gunfire began and he saw how many Myanmar security forces were in Chut Pyin. He was shot in the left lower leg and managed to hide in the nearby rice fields, where he reported being surrounded by 10 to 20 people, some shot and others with slit throats, as well as a dead woman with a mutilated breast. He also said that his congenitally disabled uncle had been stabbed and killed by gunshot. Alom lay in the field until his brother found him the next day and brought him to a nearby village. Alom was then carried to Bangladesh, which took 10 to 12 days. Once he reached Cox’s Bazar, Alom spent five months in the hospital for leg surgery.

PHR Medical Evaluation

The physical examination of Alom’s left leg revealed a single scar on the anterior tibia and surgical scars on the lower leg that were highly consistent with his report of a gunshot injury that was surgically repaired. A single oval scar measuring 1 cm by 1.5 cm, typical of a bullet entry wound, was present on the anterior surface of the left lower leg, approximately 5 cm below the patella (kneecap). The left leg also shows evidence of surgical repair of the tibia (large bone of the lower leg), with a linear wound running the entire length of the lower leg from the patella to the ankle. There also were scars consistent with placement and subsequent removal of fixator screws along the anterior and lateral axes of the lower leg. Alom reported that he required a cane/stick to walk and had moderate, persistent pain.

Profile 39: Sultan Ahmed, 19-year-old man

• Impairment: Gunshot wound to left ankle, resulting in significant injury to neurovasculature and bone of the lower left leg and subsequent amputation of lower left leg.
• Disability: Requires crutches to walk on his remaining leg.

On his way home from prayers on the day of the attack, Sultan Ahmed saw Myanmar security forces gathered inside and outside the village. Once home, he heard orders for everyone to leave their houses. As he tried to flee, Ahmed was shot in the left ankle and right shoulder. He also said he was grazed on the head by two bullets. Ahmed was able to hide in a shallow pond near his house for many hours until neighbors rescued him. During this time, he saw dozens of women and girls being taken inside the school, where many were raped and killed. He heard them crying “Oh, father, oh, mother, come and save us!” and saw a woman with mutilated breasts. Ahmed also reported overhearing orders that all Rohingya men and boys be killed; those who did not die from bullet wounds had their throats slit. While hiding, he said he saw children being thrown into a fire, as well as dozens of dead bodies. After 10 hours of hiding, neighbors carried Ahmed to a nearby village, where he stayed for seven days before traveling to Bangladesh. Once in Bangladesh, he was hospitalized for 14 days. Doctors amputated his left lower leg and surgically removed the bullet that was lodged in his left shoulder. Ahmed added that neighbors told him that his father was taken and killed, but he does not know any further details.

PHR Medical Evaluation

Ahmed’s injuries were highly consistent with his testimony of having sustained a head wound, multiple gunshot injuries, and the amputation of his left leg. He had a 7 cm by 4 cm oval scar on his right deltoid (shoulder) area, oriented in an anterior/posterior direction with hypertrophied (enlarged) and irregular margins and hyperpigmentation. The scar had suture sites on the lateral aspects, consistent with surgical removal of the projectile at the site of entry, with no bullet exit wound. The wound appeared poorly healed, likely secondary to delayed treatment. Ahmed also has a 0.5 cm by 1 cm linear scalp scar with broad margins to the left side of the head consistent with his report of being struck on the head. The cause of the head injury cannot be determined, as the testimony with regard to it was unclear. The amputation of his left leg below the knee was consistent with Ahmed’s report of being shot in the lower leg, and then being unable to walk because of significant injury to the neurovasculature or bones of the leg. The surgical scar was closed and well approximated (cleanly healed); the entire area was free. He required crutches to walk on his remaining leg.

Profile 40: Jahan Ara, 17-year-old girl

• Impairment: Gunshot wound to left shoulder, resulting in fracture and deformity of clavicle. Delay in treatment and surgery.
• Disability: Limited function of her left arm and shoulder with persistent pain.

Jahan Ara was in her house with five other relatives when they heard gunfire. Her uncle was struck in the head by a bullet while inside the house; the rest of the family escaped toward the fields. As they were running, Ara’s cousin was shot and fell to the ground. Ara was struck by a bullet in her left shoulder and fell. Ara reports that she was in and out of consciousness while she lay in the field, but remembers that a group of three Rakhine Buddhist civilians and one soldier walked by her. They kicked her and she pretended to be dead, so they took her jewelry and left. Ara said that more than a dozen dead bodies surrounded her in the fields. After the massacre, her grandmother and others carried her to a nearby village, where they stayed for roughly six days. They then went to Bangladesh, where Ara was hospitalized for more than a month.

PHR Medical Evaluation

Ara’s physical examination was highly consistent with her report of gunshot injury with entry to the left deltoid (shoulder muscle) and damage to the soft tissues of the shoulder and the clavicle (collarbone) – and, possibly, the scapula (shoulder blade) – before exit. On her anterolateral (front-side) deltoid area, Ara had a 2 cm by 3 cm scar with a teardrop shape and a poorly differentiated margin. There was an appreciable deformity in the mid-clavicle, but the scapula appeared intact by palpation. Ara had a second scar on her left scapular area, triangular in shape and approximately 3 cm by 4 cm, with poorly differentiated margins and hypertrophy (enlargement) near the inferior aspect (bottom) of the wound. Based on the physical evaluation, the bullet likely entered her shoulder on the side, hit and broke her clavicle, bending the curve of the bullet, which then angled out of her upper back near the scapula. Ara had a limited range of motion in her shoulder. She was able to elevate her arm 45° above horizontal in the anterior plane (forward) and only 30° above horizontal in the lateral plane (side). Her report of improvement after surgery, subsequent deterioration in mobility and range of motion, and persistent pain reflected a lack of access to post-operative care and physical therapy.

Profile 41: Anayath Korim, 20-year-old man

• Impairment: Blast injury resulting in significant burns to legs and permanent scarring.
• Disability: Difficulty moving joints, difficulty walking and has a limp, and has ongoing pain.

Anayath Korim was in his home just outside the village of Chut Pyin when he heard gunshots coming from the village, and several children ran into his house for shelter. As nine people hid inside Korim’s home, a large explosion occurred and he lost consciousness. He awoke a short time later as neighbors were carrying him to a neighboring village.

PHR Medical Evaluation

The physical findings were highly consistent with Korim’s testimony of sustaining a significant blast injury which resulted in burns to his leg. The entire lateral aspect (side) of the right leg, from the groin to the ankle, was covered with extensive burn scars. These areas appeared mottled with areas of hyper- and hypopigmentation (mixed discolora-tion), irregular texture, lack of hair, and contractures typical of a full-thickness burn injury. There were some areas that appeared to have undergone surgical grafting of skin from other non-affected areas to replace some of the missing skin. This type of extensive, full thickness burn suggested a significant blast injury that resulted in Korim becoming unconscious and unable to remove himself from the burning home quickly enough. He suffered from permanent scarring, pain, and difficulty moving his joints, and he walked with a limp.

Profile 42: Mohammed Yusuf, 5-year-old boy

• Impairment: Explosion resulting in injury to face, right eye, and right ear.
• Disability: Complete blindness in the right eye and hearing loss in the right ear.

Mohammed Yusuf and his family live in a village that is roughly a 10-min walk from Chut Pyin. He and his older brother were playing near Chut Pyin when he heard gunfire and explosions close to him, followed by a sudden pain in his right eye. His brother carried him home to their mother, who saw that Yusuf’s eye was covered with blood. She cleaned him up, but Yusuf said his head still hurt. Over the next four days, Yusuf did not get up and ate very little. Since then, he has not been able to see out of his right eye and cannot hear out of his right ear. Concerned that their village would be attacked, Yusuf’s family decided to walk to Bangladesh, which took seven days. Once they arrived, Yusuf’s mother took him to a hospital in Cox’s Bazar.

PHR Medical Evaluation

The physical examination findings of blindness in Yusuf’s right eye and hearing loss in his right ear were consistent with his testimony of exposure to explosions and blast trauma. Yusuf’s right eye exhibits a loss of the border between the iris and pupil, which were both grey in color and difficult to distinguish. He was completely blind in the right eye and could not see light/dark or any colors. The pupil was not reactive to light. There was a single linear deformity that was oriented vertical-ly from the 1 o’clock location of the iris through the pupil to the 5 o’clock position of the iris. Eye move-ment was intact. No injury was apparent to the soft tissues around the eye. These findings were highly consistent with an ocular injury with damage to the pupil. This was consistent with the effects on the eye of small foreign bodies that can be blown into the air during blasts from grenades and other explo-sive military weapons. The right ear did not exhibit any external signs of trauma. No otoscope was available for this evaluation, so visualization of the inner ear and tympanic membrane was not possible. Two medical exams were administered to test for hearing loss. The Weber hearing tuning fork sound is heard equally loudly in both ears when hearing is normal; however, Yusuf’s test lateralized to the right ear, while the Rinne hearing test found that Yusuf heard the tuning fork better over air in the left ear (normal) and better in the bone in the right ear (abnormal). In sum, these findings detected a conductive hearing loss in the right ear, likely secondary to blast wave trauma to the middle ear or cochlea. Post-traumatic conductive hearing loss is highly consistent with Yusuf’s testimony of blast trauma.

Profile 43: Abdul Roshid, 22-year-old man

• Impairment: Beating of the back and gunshot wound to left upper leg, resulting in nerve, muscle, and ligament injuries.
• Disability: Atrophy of calf and thigh muscles, weakness of the left leg, walks with a limp, on-going back pain, and depression.

Abdul Roshid was shot as he ran through gunfire during the attack on Chut Pyin. He then hid by a pond, from where he witnessed people being killed and women being raped. Three men then found him; while a soldier with a gun held him down, Roshid was stepped on and kicked in the left side of the chest, tor-so, and leg. The men eventually left Roshid in the field, and he was found in the evening by neighbors who took him to a nearby village. There was no available doctor to see him, so Roshid used local reme-dies such as garlic and turmeric to treat his wounds. He remained in the village for six days and the gunshot entry wound became red and swollen with in-fection, draining pus and developing a foul odor. Over three days, Roshid’s brother and father carried him to the Bangladesh border, where his wound was washed and he was given medication at a hospital.

PHR Medical Evaluation

Overall, the physical findings were highly consistent with Roshid’s report of being shot in the left leg while fleeing and of then being beaten. His left leg examination was a textbook example of a gunshot wound with nerve destruction. A 1.5 cm circular depressed and hyperpigmented (darker) wound on the medial upper left thigh is typical of a bullet entry wound with enlargement secondary to a skin infection. A 1 cm by 0.5 cm wound with a skin protuberance on the left posterior upper thigh below the buttock represented the bullet exit wound. The bullet likely traveled through Roshid’s medial thigh to the posterior area, damaging the peroneal nerve and disrupting muscles and ligaments along the way. There was also atrophy of the calf and thigh muscles, and Roshid has a limp. Upon neurological exami-nation, he displayed weakness of the left leg (4/5 strength in the upper leg and 0/5 strength in the an-kle/foot), with a left foot drop and sensory deficits (lack of sensation) of anterior and medial aspects of the lower left leg (on the inside of the calf) typical of a peroneal nerve injury. The finding of muscle ten-derness over the back was also highly consistent with his testimony of being kicked and stepped on while lying, curled up, in a defensive position. He reported left hip and back pain with tenderness to palpation on the left paraspinal muscle along the fourth and fifth lumbar region, as well as muscle ten-derness over the iliac crest (hip), probably secondary to being beaten. Although PHR did not conduct a full psychological assessment, Roshid had a poor affect and shows symptoms of depression and post-traumatic stress disorder (PTSD) that are highly consistent with his experience. He reports that he is married with two sons, but that he now cannot provide for his family.

Acknowledgments

This report was co-written by Laura Mills, research consultant for Physicians for Human Rights (PHR), as the principle author, and Rupa Patel, MD, MPH, DTM&H, assistant professor in the Division of Infectious Diseases and director of the HIV Pre-Exposure Prophylaxis (PrEP) Program at Washington University in St. Louis.
Initial research design and data collection was conducted by the following PHR medical experts: Rohini J. Haar, MD, MPH, research fellow at the Human Rights Center at UC Berkeley’s School of Law; Parveen Parmar, MD, MPH, chief of the Division of International Emergency Medicine and associate professor of clinical emergency medicine at the University of Southern California’s Keck School of Medicine; Rupa Patel; Satu Salonen, faculty physician and refugee clinic assistant director, Family Health Center of Worcester, MA and clinical instructor, University of Massachusetts; Homer Venters, MD, MS, former PHR director of programs; and Karen Wang, MD, MHS, instructor of medicine at Yale University School of Medicine. They worked with a team of local fixers and interpreters who remain anonymous for safety reasons.

Staff of PHR contributed to the writing and editing of this report, including DeDe Dunevant, director of communications; Phelim Kine, deputy director of programs and director of research and investigations; Donna McKay, executive director; Tamaryn Nelson, senior research; Elsa Raker, program assistant; and Susannah Sirkin, MEd, director of policy.

External review was provided by a range of experts in the fields of medicine, law, and human rights in Myanmar, including Laurie Ahern, president, Disability Rights International; Cristián Correa, senior associate, International Center for Transitional Justice (ICTJ); Andrea Gittelman, program manager, Simon-Skjodt Center for the Prevention of Genocide; Elena Naughton, program officer, ICTJ; Adam Richards, MD, PhD, MPH, PHR board member and assistant professor in the Division of General Internal Medicine and Health Services Research at University of California, Los Angeles; and Eric Rosenthal, executive director, Disability Rights International.
The report was edited by Claudia Rader, MS, PHR senior communications manager and prepared for publication by Claudia Rader and PHR communications interns Theresa McMackin and Angelica Rossi-Hawkins.

PHR would also like to acknowledge the support of MedGlobal in conducting forensic examinations and is grateful to all local partners who provided support, including Rohingya partner Htike Htike and the Cox’s Bazar-based civil society organization “Friends in Village Development Bangladesh,” who helped coordinate field activities. PHR is especially indebted to the Rohingya people who were willing to share their experiences for this report. We have used pseudonyms throughout for security reasons.

Endnotes

[1] United Nations Human Rights Council. “Report of the independent international fact-finding mission on Myanmar,” A/HRC/39/64, September 18, 2018, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23575&LangID=E. 

[2] UN Refugee Agency, Bangladesh Operational Update, January 15, 2019, https://data2.unhcr.org/en/documents/download/67736. 

[3] Physicians for Human Rights, “Please tell the World what they have Done to Us” – The Chut Pyin Massacre: Forensic Evidence of Violence Against the Rohingya in Myanmar, July 19, 2018, https://rohingya.phr.org/resources/chutpyin/.

[4] World Health Organization, World Report on Disability, 2011, https://www.who.int/disabilities/world_report/2011/report.pdf?ua=1 (p. 4). The International Classification of Functioning, Disability and Health (ICF), adopted as the conceptual framework for this report, defines disability as an umbrella term for impairments, activity limitations, and participation restrictions. Disability refers to the negative aspects of the interaction between individuals with a health condition (such as cerebral palsy, Down syndrome, depression) and personal and environmental factors (such as negative attitudes, inaccessible transportation and public buildings, and limited social supports).

[5] United Nations Human Rights Council, “Report of the independent international fact-finding mission on Myanmar.”According to the UN fact-finding mission, “Thousands of Rohingya were killed or injured. Information collected by the mission suggests that the estimate [by MSF] of up to 10,000 deaths is a conservative one.”

[6] UN Office of the High Commissioner for Human Rights (OHCHR), “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” December 16, 2005, https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx

[7] UN General Assembly, “Rome Statute of the International Criminal Court (last amended 2010),” July 17, 1998, http://www.refworld.org/docid/3ae6b3a84.html.

[8] Syed S. Mahmood, Emily Wroe, Arlan Fuller, and Jennifer Leaning, “The Rohingya people of Myanmar: health, human rights, and identity”, vol. 389, issue 10081,(May 2017), 1841-1850:DOI: 10.1016/S0140-6736(16)00646-2. 

[9] Republic of the Union of Myanmar Ministry of Health and Sports, “Hospital Statistics Report 2014-16,” Na Pyi Taw, Myanmar, 2018, https://themimu.info/sites/themimu.info/files/documents/Report_Hospital_Statistics_Report_2014-16_MOHS_Jun2018.pdf. 

[10] Caregiver Action Network, “Caregiver Statistics,” https://caregiveraction.org/resources/caregiver-statistics#Impact%20on%20Family%20Caregiver’s%20Health.

[11] UN Office of the High Commissioner for Human Rights (OHCHR), “Report of OHCHR Mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016,” February 3, 2017: https://www.ohchr.org/Documents/Countries/MM/FlashReport3Feb2017.pdf (p. 7-13).

[12] Fortify Rights, “UN Security Council: Refer Myanmar to the International Criminal Court,” May 8, 2018, http://www.fortifyrights.org/publication-20180508.html.

[13] Physicians for Human Rights, “Please Tell the World What They Have Done to Us” – The Chut Pyin Massacre: Forensic Evidence of Violence against the Rohingya in Myanmar, July 19, 2018, https://phr.org/resources/please-tell-the-world-what-they-have-done-to-us/. 

[14] Physicians for Human Rights, Widespread and Systematic: Violence against the Rohingya in Myanmar, August 30, 2018, https://phr.org/resources/widespread-and-systematic/. 

[15] UN Refugee Agency, “Bangladesh Operational Update.”

[16] United Nations Human Rights Council, “Report of the independent international fact-finding mission on Myanmar.”

[17] Much of this section was taken and adapted from the Physicians for Human Rights July 2018 report “Please Tell the World What They Have Done to Us” – The Chut Pyin Massacre: Forensic Evidence of Violence against the Rohingya in Myanmar, July 19, 2018, https://phr.org/resources/please-tell-the-world-what-they-have-done-to-us/.

[18] World Health Organization, International Classification of Impairments, Disability and Health, Geneva, Switzerland, 2001, https://www.who.int/classifications/icf/en/.

[20] Stephanie Nebehay, “UN Calls for Myanmar Generals to be Tried for Genocide, Blames Facebook for Incitement,” Reuters. August 27, 2018, https://www.reuters.com/article/us-myanmar-rohingya-un-idUSKCN1LC0KN. 

[19] United Nations Human Rights Council, “Report of the independent international fact-finding mission on Myanmar.”

[21] Ibid.

[22] Poppy McPherson, “Myanmar Rejects ‘False Allegations’ in U.N. Genocide Report,” Reuters, August 29, 2018, https://www.reuters.com/article/us-myanmar-rohingya-un/myanmar-spokesman-rejects-u-n-genocide-report-idUSKCN1LE0AC.

[23] Parveen Parmar, Jennifer Leigh, Homer Venters, and Tamaryn Nelson, “Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh”, Lancet Planetary Health 2019: 3: e144-53, (2019), https://www.thelancet.com/action/showPdf?pii=S2542-5196%2819%2930037-3.

[24] Htet Naing Zaw, “Commission Invites Victims of Violence in Rakhine State to Submit Evidence,” The Irrawaddy, December 12, 2018, https://www.irrawaddy.com/news/commission-invites-victims-violence-rakhine-state-submit-evidence.htmlfbclid=IwAR0HLtdervyxJLR9Wtg8CF8Dca9bPcJzne4phUkljHGp489o_5npNrvSkuc.

[25] Human Rights Watch, “Myanmar: Disband Panel on Crimes Against Rohingya – Rakhine State Commission Delays Efforts at Justice; Claim of ‘No Evidence’ Shows Bias,” December 19, 2018, https://www.hrw.org/news/2018/12/19/myanmar-disband-panel-crimes-against-rohingya.

[26] Michelle Nichols, “U.N. Security Council mulls Myanmar action; Russia, China boycott talks,” Reuters, December 17, 2018, https://www.reuters.com/article/us-myanmar-rohingya-un/u-n-security-council-mulls-myanmar-action-russia-china-boycott-talks-idUSKBN1OG2CJ.

[27] Parveen Parmar et al., “Violence and mortality in the Northern Rakhine State of Myanmar, 2017.”

[28] The PHR clinical team used an adapted version of the “The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Known as the Istanbul Protocol, this document is available at http://physiciansforhumanrights.org/issues/torture/international-torture/istanbul-protocol.html.

[29] World Health Organization, World Report on Disability.

[30] World Medical Association, World Medical Association Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects, 2013, https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/.

[31] World Health Organization, “Disability and Health,” 16 January 2018, https://www.who.int/en/news-room/fact-sheets/detail/disability-and-health. 

[32] Médecins Sans Frontières (Doctors Without Borders), “Rohingya Trauma and Resilience,” October 8, 2018, https://www.msf.org/rohingya-trauma-and-resilience. 

[33] International Crisis Group, “Myanmar: A New Muslim Insurgency in Rakhine State,” Asia Report,no. 283, December 15, 2016, https://www.crisisgroup.org/asia/south-east-asia/myanmar/283-myanmar-new-muslim-insurgency-rakhine-state.

[34] Much of this section was taken and adapted from the Physicians for Human Rights July 2018 report “Please Tell the World What They Have Done to Us,” The Chut Pyin Massacre: Forensic Evidence of Violence against the Rohingya in Myanmar, July 19, 2018, https://phr.org/resources/please-tell-the-world-what-they-have-done-to-us/.

[35] Human Rights Watch, “Burma: End Abuses Against Rohingya,”May 25, 2009, https://www.hrw.org/news/2009/05/25/burma-end-abuses-against-rohingya.

[36] Adrian Edwards, “One year on: Displacement in Rakhine state, Myanmar,” UN Refugee Agency, summary of press briefing, June 7, 2013, http://www.unhcr.org/en-us/news/briefing/2013/6/51b1af0b6/year-displacement-rakhine-state-myanmar.html.

[37] Aman Ullah, “Politics of Changing Colour of Cards,” The Stateless Rohingya, February 3, 2017, http://www.thestateless.com/2017/03/politics-of-changing-colour-of-cards.html.

[38] Megan Specia, “The Rohingya in Myanmar: How Years of Strife Grew Into a Crisis,” The New York Times (New York, NY), September 13, 2017, https://www.nytimes.com/2017/09/13/world/asia/myanmar-rohingya-muslim.html.

[39] Jonah Fisher, “Myanmar’s 2015 Landmark Elections Explained,” BBC News, last modified December 3, 2015, https://www.bbc.com/news/world-asia-33547036.

[40] Shashank Bengali, “Myanmar’s long-suffering Rohingya Muslims hoped that Aung San Suu would make them full citizens. They were wrong,” Los Angeles Times (Los Angeles, CA), April 9, 2017, http://www.latimes.com/world/la-fg-myanmar-rohingya-2017-story.html; “Politics of Changing Colour of Cards.”

[41] “Who Are the Rohingya?,” Al Jazeera, last modified April 18, 2018, https://www.aljazeera.com/indepth/features/2017/08/rohingya-muslims-170831065142812.html#gone.

[42] Fiona MacGregor, “As Tragedy Unfolds in Myanmar, the People’s Heroine Stokes the Flames of Hatred – Foreign Policy,” Foreign Policy, September 2017; Megan Specia, “The Rohingya in Myanmar: How Years of Strife Grew Into a Crisis.”

[43] Alal O Dulal Collective, “Burma’s Muslims and the War on Terror,” The Wire, September 2017, https://doi.org/10.1080/10576100490275094.

[44] “Myanmar Police Claim Rohingya Torched Their Own Homes,” South China Morning Post, September 7, 2017, http://www.scmp.com/news/asia/south-asia/article/2110155/they-burned-their-own-houses-and-ran-away-myanmar-police-tell; Tom Miles, “Myanmar says it would like to see ‘clear evidence’ of genocide,” Reuters, March 8, 2018, https://www.reuters.com/article/us-myanmar-rohingya-rights/myanmar-says-it-would-like-to-see-clear-evidence-of-genocide-idUSKCN1GK2JH.

[45] United Nations Human Rights Council, Report of the independent international fact-finding mission on Myanmar.

[46] Public International Law and Policy Group, Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State, September 2018, https://www.publicinternationallawandpolicygroup.org/rohingya-report. 

[47] Human Rights Watch. “Burma: Widespread Rape of Rohingya Women, Girls: Soldiers Commit Gang Rape, Murder Children,” November 16, 2017, https://www.hrw.org/news/2017/11/16/burma-widespread-rape-rohingya-women-girls.; Amnesty International, “’They Rape Everyone’: Widespread Use of Sexual Violence in Myanmar,” June 14, 2018, https://www.amnesty.org.uk/blogs/country-specialists/they-rape-everyone-widespread-use-sexual-violence-myanmar. 

[48] Interview with Salim Uddin, Balakuli Camp, Bangladesh, July 21, 2018.

[49] Interview with Faizal Islam, Thangkali Camp, Bangladesh, July 21, 2018.

[50] Interview with Anowar Hussein, Balakuli Camp, Bangladesh, July 20, 2018.

[51] Interview with Abu Tayub, Balakuli Camp, Bangladesh, July 20, 2018.

[52] UN General Assembly, “Rome Statute of the International Criminal Court (last amended 2010),” July 17, 1998, http://www.refworld.org/docid/3ae6b3a84.html.

[53] UN General Assembly, “Convention on the Prevention and Punishment of the Crime of Genocide,” December 9, 1948, Treaty Series, vol. 78, https://www.refworld.org/docid/3ae6b3ac0.html (p. 277).

[54] Ibid.

[55] United Nations, Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction, 18 September 1997, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-5&chapter=26&clang=_en.

[56] Human Rights Watch, “Burma: Landmines Deadly for Fleeing Rohingya: Military Lays Internationally Banned Weapon,” September 23, 2017, https://www.hrw.org/news/2017/09/23/burma-landmines-deadly-fleeing-rohingya.

[57] Fasth, Roger and Simon, Pascal (2015) “Mine Action in Myanmar,” The Journal of ERW and Mine Action, Vol. 19, Iss. 2, Article 6, https://commons.lib.jmu.edu/cisr-journal/vol19/iss2/6.

[58] UN General Assembly, “International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights,” A/RES/2200, December 16, 1966, https://www.refworld.org/docid/3b00f47924.html.

[59] UN Committee on Economic, Social and Cultural Rights (CESCR), “General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant),” August 11, 2000, E/C.12/2000/4, https://www.refworld.org/docid/4538838d0.html.

[60] Interview with Abu Tayub, Balakuli Camp, Bangladesh, July 20, 2018.

[61] The American Society of Anesthesiologists, “Types of Pain: Injury,” https://www.asahq.org/whensecondscount/pain-management/types-of-pain/injury/.

[62] World Medical Association, “International Code of Medical Ethics,” October 1949, https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/.

[63] Timothy McLaughlin and Shibani Mahtani, “Myanmar’s Buddhists Block Rohingya Muslims from Blood Supplies, Report Says.” The Washington Post, December 24, 2018, https://www.washingtonpost.com/world/asia_pacific/myanmars-buddhists-block-rohingya-muslims-from-blood-supplies-report-says/2018/12/23/d08157c8-02af-11e9-8186-4ec26a485713_story.html?noredirect=on&utm_term=.de1d9fd5b24b.

[64] UN General Assembly, ICESCR.

[65] Michael Safi, “Myanmar Army Shelling Villages in Rakhine State, Rights Group Told.” The Guardian, February 10, 2019, https://www.theguardian.com/world/2019/feb/11/myanmar-army-shelling-villages-in-rakhine-state-rights-group-told.

[66] Thu Thu Aung and Simon Lewis, “‘We Can’t Go Anywhere’,” Reuters.

[67] Food and Agriculture Organization of the United Nations. “Central and Northern Rakhine State Case Study: Revisiting Emergency Response and Recovery Project in Disaster and Conflict Affected Communities,” July 2017, http://www.fao.org/3/I8564EN/i8564en.pdf.

[68] Livelihoods and Food Security Trust (LIFT) Fund and CARE International, Myanmar, Tat Lan Sustainable Food Security and Livelihoods Program: Baseline Assessment, November 2014. Print.

[69] UNICEF. “Rakhine State: A Snapshot of Child Wellbeing,”, https://www.unicef.org/myanmar/Rakhine_State_Profile_Final.pdf.

[70] The World Food Programme, “Myanmar,” https//www1.wfp.org/countries/myanmar.

[71] Shwe Yee Saw Myint, “Labour Discrimination Billion Dollar Detriment to Myanmar’s GDP: NGOs,” The Myanmar Times, December 14, 2012, https://www.mmtimes.com/national-news/3554-labour-discrimination-billion-dollar-detriment-to-myanmar-s-gdp-ngos.html. 

[72] Kate Mayberry, “Rohingya Facing ‘Lost Generation’ of Children Out of School,” Al Jazeera, December 12, 2018, https://www.aljazeera.com/news/2018/12/rohingya-facing-lost-generation-children-school-181212082048462.html.

[73] Joshua Carroll, “Myanmar’s Rohingya Deprived of Education,” Al Jazeera, August 4, 2014, https://www.aljazeera.com/indepth/features/2014/08/myanmar-rohingya-deprived-education-201484105134827695.html.

[74] UN General Assembly, ICESCR.

[75] UN General Assembly, “Convention on the Rights of Persons with Disabilities,
A/RES/61/106, January 24, 2007, https://www.refworld.org/docid/45f973632.html.

[76] Thu Thu Aung and Simon Lewis, “‘We Can’t Go Anywhere’: Myanmar Closes Rohingya Camps but ‘Entrenches Segregation’,” Reuters, December 5, 2018, https://www.reuters.com/article/us-myanmar-rohingya-segregation-insight/we-cant-go-anywhere-myanmar-closes-rohingya-camps-but-entrenches-segregation-idUSKBN1O502U.

[77] Nyan Lynn Aung, “Aid Groups Barred from Rakhine Conflict Zones,” The Myanmar Times, January 14, 2019, https://www.mmtimes.com/news/aid-groups-barred-rakhine-conflict-zones.html. 

[78] Amnesty International. “Myanmar: Fresh Evidence of Violations Amid Ongoing Military Operation in Rakhine State,” February 11, 2019, https://www.amnesty.org/en/latest/news/2019/02/myanmar-fresh-evidence-violations-military-operation-rakhine-state/. 

[79] Ibid.

[80] United Nations Human Rights Council. “Report of the independent international fact-finding mission on Myanmar,” A/HRC/39/64, September 18, 2018, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23575&LangID=E. 

[81] United Nations General Assembly, Situation of Human Rights of Rohingya Muslims and other Minorities in Myanmar, A/HRC/39/L.22, September 25, 2018, http://undocs.org/A/HRC/39/L.22.

[82] Poppy Elena McPherson and Ruma Paul, “Myanmar Army Chief Must be Prosecuted for Rohingya ‘Genocide’: U.N. Rights Envoy,” Reuters, January 25, 2019, https://www.reuters.com/article/us-myanmar-rohingya-un/myanmar-army-chief-must-be-prosecuted-for-rohingya-genocide-u-n-rights-envoy-idUSKCN1PJ1AK. 

[83] United Nations Office of the High Commissioner of Human Rights (OHCHR), “UN Independent International Fact-Finding Mission on Myanmar advances accountability and initiates new investigations,” March 14, 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24334&LangID=E.

[84] Htet Naing Zaw,“Commission Invites Victims of Violence in Rakhine State to Submit Evidence,” The Irrawaddy, December 12, 2018, https://www.irrawaddy.com/news/commission-invites-victims-violence-rakhine-state-submit-evidence.html.

[85] Human Rights Watch, Myanmar’s Investigative Commissions: A History of Shielding Abusers, September 2018, https://www.hrw.org/sites/default/files/supporting_resources/201809myanmar_commissions.pdf.

[86] United Nations Office of the High Commissioner of Human Rights (OHCHR), “Myanmar: UN Human Rights Expert to Visit Thailand and Bangladesh,” January 11, 2019, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24060&LangID=E.

[87] Cape Diamond and Timothy McLaughlin, “Myanmar Court Rejects Appeal of Reuters Journalists Jailed Under State Secrets Act,” The Washington Post, January 11, 2019, https://www.washingtonpost.com/world/asia_pacific/reuters-journalists-challenge-conviction-under-myanmar-state-secrets-act/2019/01/11/0c09a4d8-14d7-11e9-ab79-30cd4f7926f2_story.html?noredirect=on&utm_term=.398e8a164e4d. 

[88] Todd Pittman, “Myanmar Government Under Suu Kyi Cracks Down on Journalists,” The Associated Press, February 15, 2018, https://www.ap.org/ap-in-the-news/2018/myanmar-government-under-suu-kyi-cracks-down-on-journalists. 

[89] Nyan Lynn Aung, “Aid Groups Barred from Rakhine State,” Myanmar Times, January 14, 2019, https://www.mmtimes.com/news/aid-groups-barred-rakhine-conflict-zones.html.

[90] Hannah Ellis-Petersen and Shaikh Azizur Rahman, “Rohingyas to be Repatriated Despite UN Genocide Warning,” The Guardian, October 30, 2018, https://www.theguardian.com/world/2018/oct/30/bangladesh-and-myanmar-agree-to-start-rohingya-repatriation-in-mid-november. 

[91] UN News, “Halt ‘Rushed Plans’ to Return Rohingyas to Myanmar, Pleads UN Expert Fearing Repeated Abuses,” September 7, 2018, https://news.un.org/en/story/2018/11/1025161. 

[92] Thu Thu Aung and Simon Lewis, “‘We Can’t Go Anywhere’,” Reuters.

[93] Ibid.

[94] Physicians for Human Rights, “PHR to UN Rapporteur: Press for Rohingya Safety and Justice,.” January 16, 2019, https://phr.org/news/phr-to-un-rapporteur-press-for-rohingyasafety-and-justice/.

[95] Stephanie Nebehay, “U.N. Envoy Fears ‘New Crisis’ For Rohingya if Moved to Bangladesh Island,” Reuters, March 11, 2019, https://www.reuters.com/article/us-myanmar-rohingya-un/u-n-envoy-fears-new-crisis-for-rohingya-if-moved-to-bangladesh-island-idUSKBN1QS147.

[96] World Health Organization, World Report on Disability, 2011, https://www.who.int/disabilities/world_report/2011/report.pdf?ua=1 (p. 4). The International Classification of Functioning, Disability and Health (ICF), adopted as the conceptual framework for this report, defines disability as an umbrella term for impairments, activity limitations, and participation restrictions. Disability refers to the negative aspects of the interaction between individuals with a health condition (such as cerebral palsy, Down syndrome, depression) and personal and environmental factors (such as negative attitudes, inaccessible transportation and public buildings, and limited social supports).

[97] The distal phalanges are the bones at the tips of the fingers

The skin on her back was discolored and rough, the extensive burn scar clearly the result of a brutal assault. As I analyzed the wounds of the 30-year-old Central American before me, I sought to ease her vulnerability and avoid re-traumatization. I reassured her she was in safe hands.

This was not the first medical evaluation I had done of an asylum seeker, and I knew that scars could speak. But the stories *Maria’s burns told me that day reinforced the power of forensic medical evidence.

A thorough forensic medical evaluation is critical in providing evidence of past persecution and establishing a basis for asylum. Accurate reporting of the medical condition and torture evidence is a responsibility that my colleagues and I take very seriously. When physical scars corroborate a story of persecution and torture, applicants are more likely to receive asylum – which, for some, means avoiding being killed if sent back to their country of origin.

Physicians for Human Rights, whose volunteer doctors provide forensic medical and psychological evaluations of asylum seekers, has a 90 percent success rate for reported asylum outcomes, versus the average national asylum success rate of just 30 percent. But with President Trump’s public defamation of asylum seekers’ motives, the chances of even getting an opportunity to apply for asylum have been severely hampered under increasingly restrictive immigration policies.

Maria’s scars confirm her story of being beaten when she was kidnapped by gang members for being “different.” Not only had she been targeted for being indigenous, they took aim at her because of her gender identity: Maria was assigned male at birth, but identifies as a woman – something which one group of gang members thought warranted electrocution. They placed her in a water trough and inserted electric cables which shocked her three times, after which they threw battery acid on her. It would not be difficult for me to translate the marks on Maria’s body into evidence to bolster her asylum claim.

In the United States, to be eligible for asylum, applicants must prove that they have a credible fear of persecution as a result of their race, religion, political opinion, nationality, or membership in a particular social group. The legal affidavit that followed my evaluation of Maria’s scars would go a long way toward strengthening her lawyer’s argument that she indeed suffered extreme trauma in her country of origin and that returning there would put her life in danger.

But some cases don’t bear evidence on the outside. Some scars fade. Some physical abuse doesn’t leave a permanent mark. And then there’s the psychological trauma. International and U.S. law consider infliction of severe pain or suffering – whether physical or mental – to be part of the definition of persecution, but proving that someone is emotionally traumatized can be much more difficult. Putting the case forward for invisible scars is far more challenging in an immigration court, where appealing to a judge’s emotions goes hand-in-hand with laying out the forensic evidence.

*Vanessa was in her late 40s when I evaluated her. Though there were no discernable marks on her body, it was immediately apparent that her psychological scars ran deep. She had been living in the United States for several decades but was undocumented. She raised a family, and one of her children had even joined the U.S. armed forces. En route to a military training graduation ceremony, she was arrested and taken into Immigration and Customs Enforcement detention. Over the next few weeks, she was moved from detention in Arizona to Louisiana to Texas, and eventually deported to Mexico. U.S. immigration officers dropped her at the border after sundown and told her to “walk into town” on her own – a town she had never been in before, and where she knew no one. Within 10 minutes of crossing the border, she was kidnapped, beaten and raped by gang members. She never did attend her child’s graduation ceremony. In fact, it would be months before she was reunited with her family, after running across the border between legal ports of entry into Arizona. Her decision to run had been an easy one. She had been held at gunpoint by cartel members who had been following her since the initial attack, and who now threatened to kill her, telling her, “The only way for you to escape us is to run across the border where we cannot follow.”

Someone like Vanessa would need to be evaluated by my colleagues who specialize in psychiatry and psychology and who work alongside me as part of Physicians for Human Rights’ Asylum Network. Their evaluations are similar to the physical exams that I do, but they seek to extract trauma embedded deep within. They translate symptoms of trauma into forensic evidence, which is often life-saving. When someone claims they’ve been tortured but there are no witnesses, or if they were tortured in a secret location, or when there’s a lack of medical documentation from the time of the attack, the only evidence that exists is what is buried in their minds. It could be panic attacks, flashbacks, and nightmares, or a state of numbness, lack of emotion, and forgetfulness – all psychological aftereffects which are highly consistent with post-traumatic stress.

Immigration courts across the United States are suffering severe and growing backlogs, and the government shutdown resulted in more than 80,000 hearings being canceled. But even on a so-called “good” day, the legal process that awaits all applicants seeking asylum is grueling, and almost always includes a period of detention.

Crossing the border in search of a better life is not a manipulative ploy by gangs to infiltrate the United States. The scars that I see each day tell me that these are frightened individuals who embark on this journey out of desperation and hopelessness – often as a last resort. Simply put: they have nowhere else to be safe. Being granted asylum will never take away the trauma they suffered in their countries of origin, but it guarantees that they never have to return to the horrors from which they fled.

*Names have been changed to conceal identities.

Dr. Norma Price is based in Tucson. She has been practicing medicine for over 45 years and has more than a decade of experience working with migrants along the U.S.-Mexico border. Dr. Price serves as a medical expert for Physicians for Human Rights as part of its Asylum Program.

In his latest briefing to the United Nations Security Council on the situation in northwest Syria, the UN’s humanitarian chief, Under-Secretary-General Mark Lowcock, demonstrated his exasperation over the continued targeting of health facilities in Hama and Idlib and the lack of political will to put a stop to this gruesome practice. Mr. Lowcock relayed some questions his office had received from states, NGOs and doctors operating in Syria’s northwest, and families affected by violence, and his answers sent a strong message to a gridlocked Security Council. Considering the confines of his position and mandate, we thought the USG for Humanitarian Affairs came very close to breaking traditional UN diplomatic ambiguity and actually naming names. Given Physicians for Human Rights’ (PHR) extensive documentation of these violations since 2011, we thought we would take the opportunity to try to fill in the blanks in Mr. Lowcock’s careful statement and clarify what we take to be his underlying but unspoken messages. Mr. Lowcock’s questions and answers appear below in gray and red; PHR’s answers follow.

Question: “Who is bombing all these hospitals?”

I can’t say. But at least some of these attacks are clearly organized by people with access to sophisticated weapons, including a modern air force and so-called smart or precision weapons.

PHR’s extensive research on attacks on health care facilities in Syria leaves next-to-zero ambiguity regarding the identity of the perpetrators: the Syrian government and its allies, including Russia. From the rudimentary (barrel bombs) to the sophisticated (high-explosive guided munitions), the Syrian government and its allies have used every means at their disposal to obliterate health systems in areas they are targeting. In PHR’s assessment, the Syrian government and its allies – including Russia – have carried out 90 percent of the 566 documented attacks on health facilities since the conflict began.

Question: “Are hospitals being deliberately targeted?”

I don’t know. The people who do are the ones dropping the bombs. What I can tell you is that there are a lot of attacks on these health facilities.

In many instances of attacks on health facilities, the people who are dropping the bombs certainly do know what they are targeting. There are many indicators that some of the attacks that PHR has documented were intentional. Conducting multiple attacks on the same facilities is one such indicator. The Kafr Nabl Surgical Hospital in Idlib has been targeted a total of 11 times since June 2014, most recently on May 5, 2019.

Not only are these attacks carried out in a cold and calculated manner, they are a fundamental part of a ruthless military strategy that the Syrian government has applied across Syria to terrorize the population, force people into flight, and gain control of territory.

Question: “Is it true that you provide details of where hospitals are, in order to protect them?”

Yes. The obligation to protect civilian objects – including hospitals – comes from international humanitarian law. We give details of some hospital locations to the parties to the conflict so that they can comply with those obligations.

This is another clear indicator of the deliberate nature of attacks on health facilities. The facilities the USG is referring to here are ones whose civilian character is verified by the UN and whose coordinates are shared with belligerents. In other words, these are sites the parties to the conflict were explicitly told are medical facilities. Yet the warring parties continue to launch attacks on the medical facilities with utter disregard for their protected status under international law.

Question: “Is the information being provided about the locations of hospitals in fact being used not to protect hospitals but to target them?”

I don’t know. Again, the people who can answer that question are the ones dropping the bombs. Many deconflicted sites which are not hospitals have not been attacked.

Attacks on deconflicted sites could be pinned on a failure of this specific protection mechanism, but it’s more likely, given the systematic pattern of these violations, that the Syrian government or its allies are unwilling to comply with the process when it pertains to health facilities and personnel. What the deconfliction mechanism essentially does is remove any margin of deniability. Based on all available evidence, PHR is convinced that these sites were targeted because they are medical facilities. Has this kind of thing happened before during the Syria conflict?

Question: “Has this kind of thing happened before during the Syria conflict?”

Yes. The then Special Envoy, Staffan de Mistura, and I last year raised concerns about similar attacks in eastern Ghouta with Council Members who we thought might have relevant information and who we thought could prevent a recurrence.

“This kind of thing” has been a recurring nightmare in the context of the Syrian conflict. The case of Eastern Ghouta, which PHR recently highlighted, is a harrowing example of the systematic wiping out of an entire health network as part of a specific military operation. Between February 18 and April 7, 2018, Eastern Ghouta was subjected to 29 attacks by Syrian government forces and their allies, including the Russians, on health facilities that PHR was able to verify. To varying degrees, Aleppo, Daraa, and Madaya all witnessed similar patterns of abuse.

Question: “Did you get satisfactory answers at that time?”

We have yet to receive full answers to the questions we raised last year.

Mr. Lowcock’s answer really says it all. No answers.

Question: “If I were an NGO running a hospital, why would I want to give you details of my location if that information is simply being used to target the hospital?”

That is a good question. We are thinking about what conclusions to draw from recent events in respect of the deconfliction system in so far as it covers health facilities.

This is a question that our partners on the ground have actually answered. To some of the hospital administrators under threat of targeting, the decision to include their facilities in the deconfliction mechanism had nothing to do with protection. For example, the administrators of the Hassan al-Araj Hospital in northern Hama (targeted a total of seven times since its establishment) deconflicted their site to eliminate any room for deniability should their facility be attacked again. They specifically sought to build evidence that their site was being targeted. And it was attacked again, twice, after the coordinates were shared in the “deconfliction” process.

Question: “What is your advice to parents of children who live in the de-escalation zone – should they take their children to the hospital in the case of an illness or injury?”

That is a very difficult question. I am deeply concerned about the impact on the health of children, and their safety, when so many medical facilities are being attacked.

Having to weigh the risks and benefits of taking your child to a hospital for treatment shouldn’t fall to any parent. But it’s a calculus that most civilians who live in areas under Syrian government attack have to make all the time. Russia, Iran, and Turkey have made an agreement to protect the civilians living in the area. Syria and Russia should immediately cease all attacks on medical facilities. All states have an obligation to ensure respect for international humanitarian law. The responsibility lies with the international community to address the horrors in Idlib, not on Syrian parents who are just trying to keep their children alive.

Question: “Hasn’t the Security Council passed a resolution reinforcing that countries shouldn’t bomb hospitals?”

Yes. Security Council Resolution 2286, passed in 2016, specifically covered that.

Security Council Resolution 2286 was a landmark step, but sadly, it is not being implemented in any real way. Through the resolution, the Security Council condemned attacks on health facilities, demanded compliance with international humanitarian law and, most importantly, urged member states and the UN Secretary-General to take concrete steps to prevent attacks on health and hold perpetrators accountable. Three years later, attacks continue with utter impunity because the Security Council has failed to exercise the requisite pressure on perpetrators and has not referred the situation in Syria to the International Criminal Court, which can investigate, prosecute and try those responsible. Since resolution 2286 was passed on May 3, 2016, PHR has documented 199 individual attacks on medical facilities in Syria.

Question: “What is the point of the Security Council passing resolutions like that if States are not going to comply with them?”

That, Mr President, is also a very good question. It is, of course, not really addressed to me.

The Security Council’s job is to maintain international peace and security and protect civilians. That means the Security Council needs to move beyond internal divisions and push the parties to the conflict in Syria, in particular, the Syrian government and its allies, to stop attacking civilians and civilian structures and abide by longstanding international rules of conflict.

Executive Summary

Public health research has documented widening racial and ethnic health disparities as a result of punitive and discriminatory immigration enforcement practices within the militarized border zone.

Across communities that line the United States’ southern border with Mexico, U.S. immigration enforcement actions in or near hospitals, clinics, and other health care facilities are putting increasing pressure on medical professionals to compromise patient care. Customs and Border Patrol agents conduct searches in hospital parking lots and hold ambulances at checkpoints while critically ill patients languish inside. Agents arrest patients about to undergo surgery, stand guard and refuse to unshackle patients during medical evaluations, and send undocumented patients into detention directly from hospitals, at times putting safe medical discharge into question.

U.S. and international laws protect the right to nondiscriminatory access to health care for all individuals. But, in certain instances, loopholes permit enforcement actions in medical facilities which interfere with this right and with the ethical obligation of medical professionals to provide care. Through consultations with medical professionals in border communities and across the United States, as well as through desk research, Physicians for Human Rights (PHR) has uncovered cases of egregious violations where medical advice was ignored and patients undergoing urgent treatment were arrested and their treatment impeded.

While amending laws and adopting new ones would help solve this problem, there are measures that the medical community can take immediately to help protect patients and providers. This brief examines the impact of enforcement actions on access to health care for hospitalized immigrants, whether in the community or in government custody. It also serves as a resource for policymakers, medical associations, and medical professionals to take concrete action and to advocate for policy solutions, including the notion of creating “sanctuary” or “safe space” hospitals.

Introduction

The ability of providers to practice evidence-based medicine is hindered by U.S. immigration enforcement actions that disrupt or impede patient treatment. In addition to forcing clinicians to compromise their ethical obligations, these actions may also violate U.S. laws and policies intended to secure fundamental ethical and legal protections for everyone, including non-citizens. These basic rights include non-discrimination and protections to ensure patient privacy and confidentiality.

Furthermore, when immigration actions take place in clinical care settings, current and potential patients, fearful of interactions with immigration agents, avoid seeking medical care [1], despite their fundamental right to do so under domestic and international law [2]. One health professional described this issue to PHR: “People without papers, they don’t go to the doctor unless it’s really serious. So, by the time they end up at the hospital, they’re dealing with a physical crisis, job insecurity, mental health issues, and emotional trauma.”[3]  Meanwhile, routine immigration enforcement practices can cause additional, unnecessary mental and physical health problems for immigrants.[4]

Certain immigration enforcement actions in clinical settings also place medical professionals under dual loyalty pressures – situations in which their professional duty to their patients is at odds with directives from an employer or governmental authority. These generate moral distress for clinicians and can compromise patient care. In light of the extremely vulnerable positions of some patients, health professionals have very strong and clear obligations to uphold several core ethical standards, including providing non-prejudicial care and serving as protectors of basic patient rights. A lack of explicit conversations on the legal obligations of medical staff in the context of immigration enforcement can lead to care that is dangerous and ethically inadequate. This brief explores in depth one particular context where dual loyalty issues arise, that of immigration enforcement actions taking place in or near health facilities.

Clinical care providers in Los Angeles, Houston, Brownsville, Tucson and elsewhere expressed concerns about these incidents during interviews with PHR conducted between June and September 2018. During 2018, a number of clinicians who provide medical and psychological evaluations for asylum seekers also reported to PHR that harsh and arbitrary immigration enforcement actions are an emerging concern in their health facilities. PHR has not collected comprehensive information to pinpoint the prevalence and impact of these practices. Further empirical research is urgently needed, but our preliminary findings support taking action to protect patients and professionals now.

What is a Sanctuary Hospital?

“Sanctuary hospital” is a term to describe the concept of a safe space where patients’ rights are uniformly protected by providers and respected by government authorities.

There is no precise definition of “sanctuary hospital” in law or medical ethics, as it is generally assumed that hospitals are and should be safe spaces. The need for this relatively new concept emerged due to the recent rise in enforcement actions in and around medical centers and the resulting fear among immigrants of seeking medical attention. In this brief, the term “sanctuary hospital” is used to capture the concept of a safe space where patients’ rights are uniformly protected and where practical measures are implemented to achieve this outcome. In this sense, a sanctuary hospital will have policies that: direct staff on how to interact with immigration agents; explain how to approach immigration issues with patients; note the best way to record relevant patient information; and clarify obligations under the Health Insurance Portability and Accountability Act as pertaining to immigrant patients.[5]

How U.S. Immigration Actions Interfere with Medical Care

Immigration Enforcement Actions Violate Policy That Protects Health Care Settings

Sara Beltran-Hernandez was waiting to undergo an urgent neurological assessment when she was abruptly discharged, shackled, and returned to detention by ICE officers.

The right to non-discriminatory access to health care for all people is protected by U.S. laws and policies. Historically, the government’s policy was consistent with human rights and medical ethics, as it recognized medical facilities as “sensitive locations,” where enforcement operations should not occur absent “exigent circumstances” or prior supervisory approval.[6] According to the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) Sensitive Locations policy, “exigent circumstances” include those involving national security, terrorism, public safety, or the imminent risk of destruction of evidence pertaining to a criminal matter.[7] The underlying rationale for this policy is the same as for medical ethical standards on access, non-discrimination, and privacy: securing access to medical care is good for both the sick and for public health generally.
However, in recent years, violations of the Sensitive Locations policy by agencies responsible for immigration enforcement have been reported with increasing frequency throughout the United States. For instance, while being treated at a community hospital after collapsing in ICE detention, Sara Beltran-Hernandez was waiting to undergo an urgent neurological assessment when she was abruptly discharged, shackled, and returned to detention by ICE officers.[8] In another instance, ICE agents watched a patient leave the hospital, barely waiting until he was off the campus to arrest him.[9]  ICE has controversially maintained that these agents’ actions were compliant with the Sensitive Locations policy.[10]  Furthermore, ICE officials have, on multiple occasions, approached or detained family members of people requiring medical attention; this affects patients’ emotional well-being as well as practical matters such as transportation to and from care. Jose de Jesus Martinez was reportedly visiting his injured son in the intensive care unit of a San Antonio hospital when ICE agents entered and accosted him.[11]  Oscar Millan was reportedly arrested while attempting to pick up his newborn son from a hospital in Boston,[12] and Joel Arrona was detained by ICE while driving his pregnant wife to a hospital for a cesarean section, leaving her to drive herself to the hospital alone to deliver her baby. [13]

Actions in the Border Zone Impede Access to Medical Attention

The Sensitive Locations policy offers more limited protections to patients and providers in border states, where CBP is the primary enforcement agency. Protections are applied differently “within the immediate vicinity of the border;” here, CBP agents are only required to act with “sound judgment and common sense” while operating consistent with the policy’s goals.[14] CBP has interpreted the “immediate vicinity” language to apply to any location within 100 miles of the border.[15] The policy lists operations in the vicinity of the border as: “searches at ports of entry, activities undertaken where there is reasonable certainty that an individual just crossed the border, and circumstances where agents have maintained surveillance of a subject since crossing the border,” among others.[16]

Despite this expansive government interpretation of its own enforcement authority in the 100-mile zone, reports of incidents raise questions as to CBP’s compliance with the policy. For example, Rosa Maria Hernandez, a 10-year-old with cerebral palsy in need of emergency gallbladder surgery, was arrested by CBP agents while she was being transferred by ambulance between two hospitals.[17] Agents followed the ambulance to the hospital, demanded that the door to Rosa’s hospital room remain open throughout her hospital stay, and, despite medical advice regarding the need for a safe discharge back to her family, instead immediately transported her to a juvenile facility upon discharge.[18] Furthermore, CBP agents have conducted searches in hospital parking lots and have stopped and held an ambulance at an immigration checkpoint despite the presence of a patient in critical condition on board.[19] Four different medical professionals in Arizona informed PHR that CBP agents regularly park in front of the hospital emergency room, presumably to use medical care to target undocumented immigrants for enforcement.[20]

Rosa Maria Hernandez, a 10-year-old with cerebral palsy in need of emergency gallbladder surgery, was arrested by CBP agents while she was being transferred by ambulance between two hospitals.

Interference with Medical Care for Patients in Custody

Immigration officials have allegedly used information disclosed to mental health professionals by children in immigration custody, raising concerns over patient privacy and medical ethics. Attorneys report that information shared by unaccompanied children in therapy sessions is increasingly being accessed by immigration authorities and then used as evidence in immigration court hearings.[21]  The information is reportedly used to facilitate deportation and justify higher levels of detention.[22]  It is unclear whether the Health Insurance Portability and Accountability Act (HIPAA) protects the children in this situation.[23]   However, the disclosure of such information raises ethical concerns about the privacy of those interactions with vulnerable children, especially if the medical professionals are aware that the information will be used against the child’s best interests.[24]

“I couldn’t think of the rationale of chaining someone who is so sick he almost died.”

Sara Vasquez, MD, Tucson, AZ

Even when ICE seeks medical attention for people in custody, the agency maintains that the person is still “detained,” which can interfere with the ability of medical providers to help the patient. In one instance, a patient was transported to a Houston hospital from a detention center because he had metastatic cancer and was only expected to live a few more weeks.[25] The patient’s doctor was unable to adequately examine him due to the fact that the patient had restraints running across his body, despite not posing a danger to anyone due to his weakened state.[26] The doctor requested that detention officers remove the restraints, to no avail.[27] In another case, a patient in immigration custody receiving medical attention was shackled; agents gave no response as to why the restraints were necessary for this critically ill patient when repeatedly asked by the patient’s doctor.[28] “I couldn’t think of the rationale of chaining someone who is so sick he almost died,” she told PHR.[29] Since physical restraints can pose health dangers to patients, the current standards of the Joint Commission, the oldest and largest standards-setting and accrediting body in U.S. health care, require that the least restrictive intervention be used at all times.[30]

Determining the prevalence of situations like these will require further research: ICE and CBP refuse to disclose information about detention sites, which contributes to a lack of accountability for violations. Between 1995 and 2017, at least 80 different hospitals were utilized by ICE in 18 states, which indicates that enforcement actions may affect a significant number of patients and providers.[31]  Considering that this data does not include CBP detainees, the numbers of people detained and hospitals used by immigration officials are likely much greater.
D, Tucson, AZ

Information shared by unaccompanied children in therapy sessions is increasingly being accessed by immigration authorities and then used as evidence in immigration court hearings … to facilitate deportation and justify higher levels of detention.

Severe Consequences of Enforcement Actions in Health Care Facilities

Impact on Standard of Care

Enforcement actions by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) severely disrupt the quality of medical services provided to non-citizens in custody, while health facilities and personnel have differing perceptions and awareness of the ethics, legality, and impact of immigration enforcement on patients.[32]  Emergency and primary care physicians in Everett, Massachusetts, reported that fear of immigration enforcement led to increased health care avoidance, stress, and anxiety.[33]  Medical personnel in Arizona hospitals report that CBP’s enforcement actions compromise the standard of care provided.[34]  For example, the presence of enforcement agents can deter patients from telling medical professionals the truth to avoid self-incrimination, which can affect the treatment provided.[35] Physicians also reported that some agents have insisted on leaving patients in critical condition in shackles, which may affect the ability to examine the patient or run diagnostic tests.[36] According to professionals in Arizona, patients can be returned to detention or deported at ICE’s discretion following medical attention; patients then have decreased access to follow-up care and the ability to fully recover is inhibited.[37]

Impact on the Patient’s Right to Privacy

Enforcement actions interfere with patient confidentiality and the right to privacy. Medical professionals in the Tucson area received complaints that certain hospitals had informed immigration officials of patients’ immigration status, raising concerns regarding the protection of patient information.[38] In a Texas gynecological office, staff called local authorities after they suspected that an undocumented patient’s identification was fraudulent, potentially violating health privacy law. The staff led the patient to an exam room, where sheriff deputies arrested her and reportedly threatened deportation.[39]  Furthermore, ICE and CBP require the presence of guards at all times, even during medical evaluations; meaning that conversations between medical providers and patients are not private.[40]  Even where medical professionals recognize the harms of these acts, they often felt powerless against immigration officials.[41]  Medical staff report feeling too intimidated by the armed agents to stand up to ICE or CBP enforcement actions against their patients, or to face hospital administration that is unwilling to become involved when clinicians advocate on the patient’s behalf.[42]

ICE and CBP require the presence of guards at all times, even during medical evaluations. . . . Medical staff report feeling too intimidated by the armed agents to stand up to ICE of CBP enforcement actions against their patients.

Non-citizens Are Afraid to Seek Medical Attention

Law enforcement actions also impede access to medical care for non-citizens who are not in detention. The increased presence of ICE or CBP agents at medical facilities has led to patients missing or canceling routine appointments, or even emergency visits, in greater numbers.[43]  Many people have refused to seek medical services altogether.[44] One patient, Ahmed, avoided going to the hospital out of fear of immigration repercussions, despite his need for urgent care.[45] Ahmed’s condition became so severe that he nearly died.[46] A medical professional in California described a case where a man was afraid to seek care for his father, who was in cardiac arrest.[47] By the time the man brought his father to the hospital, his father was dead.[48] As one medical professional explained, “people are fearful of accessing any service where they are asked their address or any other identifying information.”[49]

Common health problems such as obesity, diabetes, or hypertension worsen with reduced or interrupted treatment.[50] Furthermore, victims of domestic violence and other crimes avoid reporting their experiences to authorities or seeking medical attention, leaving their injuries untreated and their abusers without consequences.[51]  In addition, medical professionals caution that large populations avoiding medical treatment could result in the spread of otherwise preventable disease or infection.[52]

The overall increase in immigration enforcement under the current administration[53] is aggravating existing health issues and causing new symptoms for those worried about their status, including stress, mental illness, and the worsening of PTSD symptoms.[54]

“There was a man who[se] father … was having cardiac arrest – by the time he brought his father to the hospital, he had died. He stated he was scared to come to the hospital.”

Physician, Los Angeles, CA[55]

Case Study: Hospital and U.S. Officials Trample Rights of a Terminally Ill, Schizophrenic Patient[56]

A case shared with PHR in June 2018 illustrates the harming of vulnerable patients due to interference with medical care, especially when hospital staff are not well informed about or ignore their ethical and legal obligations. ICE and hospital practices denied the right to legal counsel, failed to obtain informed consent, and initiated unsafe medical discharge.
A schizophrenic and terminally ill non-citizen in ICE custody was receiving medical care in a hospital in California. Before his death, the patient’s rights were repeatedly violated by ICE and hospital practices. The hospital actively obstructed his right to legal counsel. The patient was declared mentally incompetent by an immigration judge and was appointed counsel;[57]  however, the patient’s attorney was kept from visiting him in the hospital. A hospital employee said ICE authorization was required, while an ICE official blamed the policy of the private prison contractor operating the detention facility. It took numerous conversations with ICE officials and hospital employees before the attorney was permitted to visit her client. Hospital staff failed to obtain informed consent from the patient, relying on consent obtained in English, though the patient did not understand English well. The hospital and ICE sought to discharge the patient, who was terminally ill, without coordinating any further care, on the basis that the patient “wanted to go home,” even though the patient was homeless, his prior home was 100 miles away, and he had no means of transportation. ICE and hospital staff failed to coordinate a safe medical discharge to hospice care for the patient and were only prevented from discharging him with no arrangement for post-discharge care – though he had no money, no friends or family, and no housing – after the patient’s attorney intervened and zealously advocated on his behalf. The attorney subsequently found a note in the patient’s medical records stating that the patient was “illegal”— a violation of the duty to provide medical treatment without discrimination enshrined by both the American Medical Association and the World Medical Association.[58]

Legal Framework

Domestic Law Regulating Government Action

The right to non-discriminatory access to health care for all people is protected by U.S. laws and policies. Laws that were implemented to ensure individual rights have been interpreted to regulate government conduct to protect immigrants from unfair practices in certain instances. For example, the Equal Protection clause of the Fourteenth Amendment guarantees equal protection of the law without regard to race, ethnicity, or nationality.[59] As such, government actors must provide emergency medical services in a non-discriminatory way.[60] This applies to search and rescue operations in the desert along the southern border.[61] The ACLU of Arizona informed a county sheriff’s department that its practice of referring 911 calls from people suspected of being undocumented to Customs and Border Patrol agents violated the Equal Protection clause.[62] Also, in the context of immigration detention, the Due Process Clause of the Fourteenth Amendment forbids officials from acting with “deliberate indifference to the serious medical needs” of detainees.[63] In addition, the Fourth Amendment protects health care facilities and patients from unreasonable searches and seizures by law enforcement agents.[64] Immigrants should be protected from acts by agents that violate these provisions.

Domestic Law Regulating Medical Professionals

Laws and policies that regulate medical professionals also protect the right of immigrants to access health care. For instance, the Emergency Medical Treatment and Active Labor Act creates a legal obligation on staff in hospitals participating in Medicare and Medicaid programs to provide emergency medical care until the patient is stabilized.[65] Fundamental principles of medical ethics safeguard the confidentiality of health records, including for immigrant patients,[66] and oblige health care professionals to provide treatment without discriminating on the basis of race, ethnicity, or immigration status.[67] In addition, according to the American Medical Association Code of Medical Ethics, physicians have a moral obligation to provide treatment when a patient has a life-threatening condition.[68] Asylum seekers and other immigrants possess a right to non-discriminatory access to medical services and to enjoyment of equal guarantees of privacy and confidentiality.

International Human Rights Law

The right to non-discriminatory access to medical care is also well established under international human rights law. Article 25(1) of the Universal Declaration of Human Rights states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care.”[69] The International Covenant on Economic, Social, and Cultural Rights codified the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[70] The treaty requires signatories, which include the United States,[71] to take steps necessary to assure that all persons have access to medical services.[72] Implicit in this right is the concept of non-discrimination. Health care is especially vital for vulnerable or marginalized populations and must be accessible without regard to social[73] or immigration[74] status.

How Medical Facilities and Staff Can Protect Patients’ Rights

“Most of our nurses work in sex crimes, child abuse, strangulation, and domestic violence – and are now being confronted regularly with immigration issues. Our office just had to put up notices on who to call in risk management if ICE arrives. It’s horrible.”

Amanda Payne, forensic sexual assault nurse and PHR Asylum Network member[75]

Establishing a Policy of Non-Discrimination

Medical facilities, personnel, and associations can take actions to ensure that patients’ rights are protected, so that health care facilities can be safe spaces for everyone. Patients have the right to be treated by a physician who is free to make decisions about ethical clinical treatment without outside interference.[76]  This is consistent with international human rights norms, domestic law, and medical ethical standards. The American Medical Association has declared that medical professionals have an ethical duty not to discriminate on any basis not related to the case when providing medical care.[77] Moreover, the World Medical Association’s guidelines prevent the influence of nationality, race, or any other factor on the quality of care given to the patient.[78] Thus, medical professionals shall not refuse to treat a patient on the basis of race, ethnicity, national origin, or immigration status.[79] In keeping with these principles, PHR urges medical facilities to adopt policies to treat any patient, irrespective of immigration status. Medical facilities should make these policies known to all staff and should inform staff that they are not required to report someone who is undocumented.

Ensuring Confidentiality of Status and Information

Facilities should also adopt policies specifically prohibiting the recording of immigration status on medical records.[80] Alternatively, when a medical professional seeks to record status for the purpose of medical treatment, such as to obtain a referral, they can communicate verbally with other providers or use indirect phrasing in records, i.e. “immigration stressors.”[81] This ensures that the patient remains protected from discriminatory treatment by others or from law enforcement action.[82] Moreover, medical facilities should have a clear policy that ensures that any information collected from patients or any information about their treatment, diagnosis, and prognosis will be kept private, and specifically that information from medical records will not be shared with law enforcement, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), absent a court order. Patients should be assured that they are safe to seek medical treatment and that their information will be protected.

Educate Staff to Protect Patients and Providers from Enforcement Actions

Facilities should educate their staff on patients’ rights that could be violated by immigration action so that staff can take steps to protect those rights. For instance, the Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures.[83] Whether a search or arrest is unreasonable depends upon whether a person would have a reasonable expectation of privacy in the place where the action occurred.[84]  When there is a reasonable expectation of privacy, a search or seizure may not occur in that location without a judicially authorized warrant.[85] Patients should expect stringent privacy protections in all clinical settings, consistent with widely promulgated codes of health professional ethics. As such, medical facilities should ensure that waiting rooms, examination rooms, and other premises are as private as possible.[86] Staff should not permit law enforcement or immigration officials to conduct a search or arrest without a valid warrant. Also, staff should be aware of the “plain view doctrine,” which allows law enforcement agents on the premises to access and use information obtained from anything in “plain view.”[87] Thus, to protect patient confidentiality, staff should make sure to keep patient files and information out of sight.

Maintain Privacy under HIPAA

Staff should also be reminded regularly that the Health Insurance Portability and Accountability Act (HIPAA) requirements should ensure that all patients’ rights are respected regardless of immigration status. HIPAA protects against impermissible disclosures of any “personal health information,” (PHI) which includes “any characteristic that could uniquely identify the individual.”[88] In certain instances, this may include a patient’s nationality or immigration status, in which case unauthorized disclosure would constitute an impermissible breach. Thus, staff cannot disclose PHI without the patient’s prior knowledge and consent, absent certain circumstances where disclosure is permitted but not required, such as to facilitate payment, for health care operations, in response to a judicial order, or in referrals or consultations for treatment purposes.[89] In the event that disclosure of personal health information without patient consent is permitted by HIPAA, hospital staff should take measures to ensure that the patient’s best interests are protected in deciding whether to divulge the information.[90] Considering the permanence of health records, providers are encouraged to minimize documentation and to avoid recording immigration status in patient records as it may expose patients to harm later, even if their immigration status has changed.[91] Informed consent of clients for recording immigration status should include an assurance of confidentiality, an explanation of their rights under privacy laws, and clinical empathy.[92]

Preparing for Interactions with Agents

As a critical measure, health care facilities should prepare staff for a possible interaction with ICE or CBP. This may involve designating enforcement liaisons to mediate all interactions and communications with agents, creating an alert system to inform staff of the presence of immigration officials, developing a plan for responding to requests from ICE or CBP, and informing staff that they should contact the legal department if agents are present.[93] Staff should be made aware that a suspected violation by ICE or CBP of the “Sensitive Locations” policy or of other rights and laws may be reported to ICE Enforcement and Removal Operations via the Detention Reporting and Information Line at (888) 251-4024 or ERO.INFO@ice.dhs.gov or to ICE Office of Diversity and Civil Rights, Civil Liberties Division, at (202) 732-0092 or ICE.Civil.Liberties@ice.dhs.gov.[94]

Recommendations

To Health Facilities:

• Establish a clear and explicit policy of non-discrimination on the basis of immigration status;
• Ensure confidentiality of status and patient information through prohibiting the recording of immigration status on medical records;
• Educate staff on patient rights that could be violated by immigration action-for example, not permitting searches of hospital rooms without a judicially authorized warrant; 
• Maintain privacy under the Health Insurance Portability and Accountability Act (HIPPA) and always take measures to ensure that a patient’s best interests are protected, even when divulging permissible information; 
• Prepare for interactions with agents through designating enforcement liaisons and creating alert systems and action plans.

To Medical Associations: 

• Issue clear guidance on ethical obligations to safeguard patient confidentiality and quality of care for the immigrant patient population in the face of increasingly harsh immigration enforcement activities;[95] 
• Make clear the differences between professional ethical obligations and possible legal requirements, and, when these conflict to create dual loyalty dilemmas, adopt guidelines for professionals to follow; 
• Issue clear statements to reinforce the ethical, medical, and public health rationales for protecting patient rights with regard to access to care, quality of care, and confidentiality of medical records; 
• Educate health professionals and administrators on the rights of patients and the obligations of medical professionals regarding patient care through developing curriculum, highlighting issues, and offering training at professional association meetings;
• Advocate for the adoption of local or state policies that seek to protect access to medical attention for non-citizens, and prevent agents from engaging in deterrence through intimidation, both explicitly and implicitly. 

To Elected Officials: 

• Support the adoption of a congressional bill that seeks to codify the Sensitive Locations policy into the Immigration and Nationality Act;[96] 
• Exercise oversight of Department of Homeland Security agencies to ensure compliance with the Sensitive Locations policy; 
• Support the adoption of state and local policies which safeguard sensitive locations.[97]

To Academic Institutions:

• Support research to document the direct and indirect impacts of immigration enforcement actions on health care access and quality. Recent research with respect to the justice system provides one possible model.[98] 

To the Department of Homeland Security: 

• Provide training for CBP and ICE agents, including ICE Health Services Corps, so that they are equipped to understand and respect medical ethics and to consider the medical needs of patients impacted by enforcement actions at all times; 
• Fully investigate and sanction agents who violate guidelines and make the findings of those investigations public to ensure respect by all agents for the Sensitive Locations policy; 
• Engage in ongoing consultations with independent medical providers in developing new policies and guidelines, and in evaluating health consequences of existing policies and practices.

Acknowledgments

This issue brief was written by Physicians for Human Rights (PHR) Legal Intern Sarah Stoughton, JD and revised by PHR Network Program Officer Kathryn Hampton, MSt, who conducted interviews in Tucson, Arizona. The policy brief benefitted from review by PHR staff, including Maryam Al-Khawaja, Europe director; DeDe Dunevant, director of communications; Derek Hodel, interim director of programs; Donna McKay, MS, executive director; Michael Payne, advocacy officer; Susannah Sirkin, MEd, director of international policy, and legal intern Sibel Uranues, MJur. Hajar Habbach, MA, program associate, conducted interviews in Brownsville and Houston, Texas. Former PHR researcher Christine Mehta, MPP conducted interviews in June 2018 in Los Angeles, California and Tucson, Arizona.

The brief benefitted from external review by Bryn S. Esplin, JD, assistant professor in the department of humanities in medicine at Texas A&M University, Rachel E. Fabi, PhD, assistant professor in the department of public health and preventive medicine at the Center for Bioethics and Humanities, SUNY Upstate Medical University, Altaf Saadi, MD, health sciences clinical instructor of medicine and National Clinician Scholars Programfellow at UCLA and Matthew Wynia, MD, MPH, FACP, professor, school of medicine, and director, Center for Bioethics and Humanities University of Colorado Anschutz Medical Campus.

The issue brief was reviewed and edited by Claudia Rader, MS, senior communications manager. It was prepared for publication by Theresa McMackin, communications intern.

Support for this policy brief was provided by the Open Society Foundations.

Endnotes

[1] Ann M. Cheney, et al., “Inequality and Health among Foreign-born Latinos in Rural Borderland Communities,” Social Science and Medicine, 215 (2018):120; “Immigrant Families in America Today: How Fear and Toxic Stress are Affecting Daily Life, Well-being, and Health,” The Henry J. Kaiser Family Foundation, December 13, 2017, https://www.kff.org/other/event/immigrant-families-in-america-today-how-fear-and-toxic-stress-is-affecting-daily-life-well-being-and-health/.

[2] “Universal Declaration of Human Rights,”adopted Dec. 10, 1948, United NationsOffice of the High Commissioner of Human Right:, 7, https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf; “International Covenant on Economic, Social, and Cultural Rights,” opened for signature December 16, 1966, United Nations Office of the High Commissioner of Human Rights: 4, https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf; “World Medical Association Declaration of Lisbon on the Rights of the Patient,” 34^th World Medical Assembly, Lisbon, Portugal, adopted Sep.-Oct., 1981 (reaffirmed April 2015): 1(a), https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/.

[3] PHR Interview in Los Angeles, CA (June 21,2018).

[4] Rajeev Bais, Breanne L. Grace, and Benjamin J. Roth, “The Violence of Uncertainty – Undermining Immigrant and Refugee Health,” New England Journal of Medicine 10, 379 (2018): 904, https://sc.edu/study/colleges_schools/socialwork/documents/bre_grace_new_england_journal_of_medicine_090618.pdf.

[5] “Sample Policies and Procedures,” California Health + Advocates, June 12, 2017. See infra “How Medical Facilities and Staff Can Protect Patients’Rights.”

[6] “FAQ on Sensitive Locations and Courthouse Arrests,” U.S. Immigration and Customs Enforcement, last updated January 31, 2018, https://www.ice.gov/ero/enforcement/sensitive-loc; ICE considers “enforcement actions” to be“apprehensions, arrests, interviews, or searches, and surveillance for immigration enforcement purposes only.” Ibid.

[7] Ibid.

[8] Sameer Ahmed,Mitchell H. Katz, and Altaf Saadi, “Making the Case for Sanctuary Hospitals,” Journal of American Medical Association 318, 21 (2017): 2079-2080, https://jamanetwork.com/journals/jama/article-abstract/2658246?redirect=true; Barbara Demick, “Federal Agents in Texas Move Hospitalized Salvadoran Woman Awaiting Emergency Surgery to a Detention Facility,” Los Angeles Times, February 23, 2017, https://www.latimes.com/nation/la-na-hospital-seizure-20170223-story.html. ICE stated that the physicians determined that she was stable enough to be discharged.

[9] Katie Shepherd, “ICE Arrested an Undocumented Immigrant Just outside a Portland Hospital,” Willamette Week, October 31, 2017, https://www.wweek.com/news/courts/2017/10/31/ice-arrested-an-undocumented-immigrant-just-outside-a-portland-hospital/.

[10] Ibid.

[11] Ahmed, “Case for Sanctuary Hospitals,”2079-2080.

[12] Ibid.

[13] Mariano Castillo, Artemis Moshtaghian, and Amir Vera, “Man Detained while Driving Pregnant Wife to Hospital has an Arrest Warrant in Mexico, ICE Says,” CNN, August 21, 2018, https://www.cnn.com/2018/08/19/us/ice-detains-california-pregnant-womans-husband/index.html.

[14] “FAQ on Sensitive Locations.” CBP is responsible for immigration enforcement at the border, while ICE typically operates elsewhere.

[15] See “Guilty until Proven Innocent: Living in New Mexico’s 100 Mile Zone,” ACLU of New Mexico, May 2015, https://www.aclu-nm.org/sites/default/files/wysiwyg/aclu-nm_guiltyuntilproveninnocentfinal5_15_2015_2.pdf.

[16] Ibid.

[17] John Burnett and Scott Neuman,“10-Year-Old Girl is Detained by Border Patrol after Emergency Surgery,” NPR, October 26, 2017, https://www.npr.org/sections/thetwo-way/2017/10/26/560149316/10-year-old-girl-is-detained-by-ice-officers-after-emergency-surgery.

[18] Ibid.

[19] “Guilty until Proven Innocent,” 5, 10-11;

[20] PHR Interview in Tucson, AZ (June 26, 2018); PHR Interviews in Tucson, AZ (June 2018 and September 2018). The interviewees referred to at least three different hospitals in the Tucson area.

[21] Ella Nilsen, “Kids Who Cross the Border Meet with Therapists and Social Workers. What they Say can be Used Against them,” Vox, June 19, 2018, https://www.vox.com/policy-and-politics/2018/6/18/17449150/family-separation-policy-immigration-dhs-orr-health-records-undocumented-kids.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] PHR Interview in Houston, TX (September 29, 2018).

[26] Ibid. 

[27] Ibid.

[28] PHR Interview in Tucson, AZ (June 2018).

[29] PHR Interview in Tucson, AZ (June 26,2018).

[30] “Joint Commission Standards on Restraint and Seclusion: Nonviolent Crisis Intervention Training Program,” Crisis Prevention Institute, 2009, accessed January 8, 2019, https://www.crisisprevention.com/CPI/media/Media/Resources/alignments/Joint-Commission-Restraint-Seclusion-Alignment-2011.pdf.

[31] On an average day in November 2017, ICE had custody of 38 individuals in 10 hospitals across five states: California(nine people); Florida (five); Michigan (one); South Carolina (19); and Texas (four). The Freedom of Information Act request was filed by the Immigrant Legal Resource Center and processed by the National Immigrant Justice Center. National Immigrant Justice Center, “ICE Detention Facilities as of November 2017,”https://immigrantjustice.org/ice-detention-facilities-november-2017.

[32] Jocelyn Chu, et al., “Provider’s Perspective son the Impact of Immigration and Customs Enforcement (ICE) Activity on Immigrant Health,” J Health Care Poor Underserved, 23, 2 (2012): 665.

[33] Ibid.

[34] PHR Interview in Tucson, AZ (June 2018).

[35] Ibid.

[36] PHR Interview in Tucson, AZ (June 2018); PHR Interview in Houston, TX (September 29, 2018).

[37] PHR Interviews in Tucson, AZ (June 26,2018).

[38] PHR Interviews in Tucson, AZ (June 2018).

[39] Amanda Marcotte, “Woman Arrested at OB-GYN’s Office for Being an Undocumented Immigrant,” Slate, September 14, 2015, https://slate.com/human-interest/2015/09/woman-arrested-at-ob-gyn-office-her-crime-being-an-undocumented-immigrant.html; Michael Barajas, “Woman Arrested at Gynecologist Appointment Could Face Deportation,” Houston Press, September 11, 2015, https://www.houstonpress.com/news/woman-arrested-at-gynecologist-appointment-could-face-deportation-7754827.

[40] PHR Interview in Tucson, AZ (June 2018); PHR Interview in Tucson, AZ (June 26, 2018); PHR Interview in Houston, TX (Sep.29, 2018).

[41] PHR Interview in Tucson, AZ (June 2018); PHR Interview in Houston, TX (September 29, 2018).

[42] PHR Interview in Houston, TX (September 29, 2018). The doctor interviewed explained how the hospital board did not want to combat ICE because they feared that the hospital would lose sources of funding. Ibid.

[43] “Guilty until Proven Innocent,” 11; Bais,“The Violence of Uncertainty,” 904; Yvette S. Flores et al., “Fear of Discovery among Latino Immigrants Presenting to the Emergency Department,” Academic Emergency Medicine, 20, 2(2013): 155-161.

[44] PHR Interview in Tucson, AZ (June 2018); Ahmed, “Case for Sanctuary Hospitals,” 2079-2080; Bais, “The Violence of Uncertainty,” 904; Kim, “Should Immigration Status Information,” 9; “Public Health Actions for Immigrant Rights: A Short Guide to Protecting Undocumented Residents and their Families for the Benefit of Public Health and all Safety,” Public Health Awakened, February 2,2018: 3-4.

[45] Bais, “The Violence of Uncertainty,” 904.

[46] Ibid.

[47] PHR Interview in Los Angeles, CA (June 6,2018).

[48] Ibid.

[49] PHR Interview in Tucson, AZ (June 2018).

[50] Bais, “The Violence of Uncertainty,” 904; Ahmed, “Case for Sanctuary Hospitals,” 2079-2080.

[51] Ahmed, “Case for Sanctuary Hospitals,” 2079; “Decline in Reporting of Crime among Hispanic Population,” Los Angeles Police Department, March 21, 2017, http://www.lapdonline.org/home/news_view/61998

[52] Ahmed, “Case for Sanctuary Hospitals,” 2079-2080.

[53] Amy Blair, Mark G. Kuczewski, and Johana Mejias-Beck, “Good Sanctuary Doctoring for Undocumented Patients,” American Medical Association Journal of Ethics, 21, 1 (2019): 78, http://www.thedisappearedreport.org/reports.html; Kim, “Should Immigration Status Information,” 9.

[54] Bais, “The Violence of Uncertainty,”904-905; Blair, “Good Sanctuary Doctoring for,” 79; Jocelyn Chu et al., “The Impact of Immigration and Customs Enforcement on Immigrant Health: Perceptions of Immigrants in Everett, Massachusetts, USA,” Soc Sci Med 73, 586 (2011): 94; Jorge Delva et al., “Health Implications of an Immigration Raid: Findings from a Latino Community in the Midwestern United States,” Journal Immigrant Minority Health 19, 702 (2017): 708.

[55] PHR Interview in Los Angeles, CA (June 6,2018).

[56] Case from PHR Interview with Esperanza Immigrant Rights Project Attorney in Los Angeles, CA (June 2018) and email communication with the attorney (October 2018).

[57] Franco Gonzalez v. Holder, 767 F. Supp.2d 1034 (C.D.C.A. 2010). Pursuant to this case, those declared mentally incompetent by a judge shall be afforded additional protections, including appointed counsel, to ensure that their rights are upheld throughout their proceedings. See ibid.; “Franco v. Holder,” ACLU of Southern California, accessed October 23, 2018, https://www.aclusocal.org/en/cases/franco-v-holder.

[58] “Code of Medical Ethics;” “World Medical Association Declaration of Geneva,” Second General Assembly of the World Medical Association, Geneva, Switzerland,adopted September 1948 (last amended October 2017), https://www.wma.net/policies-post/wma-declaration-of-geneva/; “World Medical Association Statement on Patient Advocacy and Confidentiality,” 45^th World Medical Assembly, Budapest Hungary, adopted October 1993 (reaffirmed April 2016), https://www.wma.net/policies-post/wma-statement-on-patient-advocacy-and-confidentiality/.

[59] U.S. Constitution, amend. XIV, sec. 2.

[60] James Lyall, “Letter to Santa Cruz County Sheriff Tony Estrada,” ACLU of Arizona, May 27, 2015, https://www.acluaz.org/sites/default/files/field_documents/aclu_letter_to_santa_cruz_county_sheriffs_department_re_search_and_rescue.pdf (accessed December 17, 2018); Jeff Sconyers and Tyler Tate, “How Should Clinicians Treat Patients Who Might be Undocumented,” American Medical Association Journal of Ethics 13, 3 (2016):230-231.

[61] James Lyall, “Letter to Santa Cruz County Sheriff Tony Estrada,” ACLU of Arizona, May 27, 2015, https://www.acluaz.org/sites/default/files/field_documents/aclu_letter_to_santa_cruz_county_sheriffs_department_re_search_and_rescue.pdf (accessed December 17, 2018).

[62] Ibid., 1-2.

[63] See Estelle v. Gamble, 429 U.S. 97,103-04 (1976). See also Revere v. Mass. Gen. Hosp., 463 U.S.239, 244 (1983); Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9^th Cir. 2002) [overruled on other grounds].

[64] U.S. Constitution, amend. IV.

[65] Sconyers, “How Clinicians Should Treat,”234.  Such hospitals are subject to this obligation when a patient seeks medical attention in the hospital’s emergency room. Ibid; 42 USC § 1395dd (b).  

[66] “AMA Adopts New Policies to Improve Health of Immigrants and Refugees,” American Medical Association, June 12, 2017, https://www.ama-assn.org/press-center/press-releases/ama-adopts-new-policies-improve-health-immigrants-and-refugees.

[67] Sconyers “How Should Clinicians Treat,”233; “Code of Medical Ethics Opinion 1.1.2,” American Medical Association, accessed November 13, 2018, https://www.ama-assn.org/delivering-care/ethics/prospective-patients; Grace Kim, Uriel Sanchez Molina, and Altaf Saadi, “Should Immigration Status Information be Included in a Patient’s Health Record?,” American Medical Association Journal of Ethics, 21, 1 (2019): 10.

[68] Sconyers, “How Should Clinicians Treat,”232.

[69] “Universal Declaration of Human Rights,” adopted Dec. 10, 1948, United Nations Office of the High Commissioner of Human Rights: 7, https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.

[70] “International Covenant on Economic, Social, and Cultural Rights,” opened for signature December 16, 1966, United Nations Office of the High Commissioner of Human Rights: 4, https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf.

[71] The United States has signed but not ratified the ICESCR. However, according to Art 18 of the Vienna Convention on the Laws of Treaties, widely recognized as codifying customary international law, even prior to the entry into force, States which have signed a treaty are “obliged to refrain from acts which would defeat the object and purpose of a treaty.”

[72] “International Covenant on Economic, Social, and Cultural Rights,” opened for signature December 16, 1966, United Nations Office of the High Commissioner of Human Rights: 4, https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf.

[73] CESCR General Comment No. 14, “The Right to the Highest Attainable Standard of Health” (Art. 12), E/C. Doc. 12/2000/4:4, https://www.refworld.org/pdfid/4538838d0.pdf [“Health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations…”].

[74] “International Convention on the Protection of Rights of all Migrant Workers and Members of their Families,” adopted December 18, 1990, United Nations Office of the High Commissioner: 11, 13-14, https://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf.

[75] Email communication with PHR staff, August 2018.

[76] “World Medical Association Declaration of Lisbon on the Rights of the Patient,” 1(b).

[77] Sconyers “How Should Clinicians Treat,” 233; “Code of Medical Ethics.”

[78] “World Medical Association Declaration;” “World Medical Association Statement.”

[79] Ibid.

[80] Amy Blair, Mark Kuczewski, and Johana Mejias-Beck, “Sanctuary Doctoring,”(Presentation) Loyola University Chicago Stritch School of Medicine, June 2018, slide 4.

[81] Kim, “Should Immigration Status Information,” 10.

[82] Ibid.

[83] U.S. Constitution, amend. IV.

[84] “Sample Policies and Procedures,” 13-14.

[85] Ibid. Any warrant should be reviewed  that it is signed by a judge or magistrate, states the address of the premises, and is being executed as specified in the document. “Protecting Immigrants’ Access to Health Care,” National Immigration Law Center, April 2017: 4.

[86] When considering whether there is a reasonable expectation of privacy in public places, courts consider factors including the number of people in the space; who has access to certain areas; how many people can access the space at any time; whether there are signs identifying rooms as private areas; and whether there is a security guard present at the entrance. “Sample Policies and Procedures,” 13-14.

[87] “Protecting Access to Health Care,” 2-3.

[88] Ibid., 2; 45 C.F.R. § 160.103.

[89] Office for Civil Rights Privacy Brief,“Summary of the HIPAA Privacy Rule,” U.S.Department of Health & Human Services, May 2003: 4-9, https://www.hhs.gov/sites/default/files/privacysummary.pdf. See also Kim,“Should Immigration Status Information,” 11.

[90] Ibid.; 8 C.F.R. §§ 160.103, 164.504(c),164.501.

[91] Kim, “Should Immigration Status Information,” 9-12.

[92] Ibid.

[93] “Sample Policies and Procedures,” 1.

[94] “FAQ on Sensitive Locations.”

[95] Sconyers “How Should Clinicians Treat,”230-33; “Code of Medical Ethics.”

[96] U.S. Congress, House, Protecting Sensitive Locations Act, HR 1815, introduced in House March 30, 2017, https://www.congress.gov/bill/115th-congress/house-bill/1815/text; US Congress, Senate, Protecting Sensitive Locations Act, S 845, introduced in Senate April 5, 2017, https://www.congress.gov/bill/115th-congress/senate-bill/845/text.

[97] For example, California’s SB 54 requires the Attorney General to create model policies for adoption by medical facilities that limit cooperation with immigration enforcement as much as possible. California Legislature, Law Enforcement: Sharing Data, § 7284.8 (a), SB 54, enacted September 11, 2017, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB54

[98] “Freezing out Justice,” American Civil Liberties Union, 2018, https://www.aclu.org/sites/default/files/field_document/rep18-icecourthouse-combined-rel01.pdf. The ACLU’s report relied partly on interviews with law enforcement agents, court employees, judges, and lawyers. 

For most people, the decision to schedule a doctor’s appointment when ill or injured is fairly easy to make. However, for millions of immigrants living in the United States, the question of whether to seek medical attention can be much more serious.

Every day, immigrants struggle with the crippling fear that seeking medical attention will result in immigration enforcement actions against them. For these people, the prospect of even life-saving treatment is weighed against the risk of being yanked away from their loved ones, stripped of their freedom, and eventually deported to a country where they could face far more perilous dangers. Confronted with this devastating choice, many immigrants decide to take their chances with illness or injury.

Unfortunately, this fear is not completely unfounded. Recently, PHR’s asylum network members have reported incidents where Customs and Border Patrol (CBP) or Immigration and Customs Enforcement (ICE) – the agencies responsible for immigration enforcement in the United States – have conducted operations at or near hospitals and medical clinics. For example, CBP agents have parked vehicles outside emergency rooms, held up an ambulance in route to the hospital with a patient in critical condition on board, and gone so far as to profile patients in waiting rooms. Once CBP or ICE has custody of a patient, officials refuse to unshackle the patient, deny access to their hospital rooms by family members or attorneys, and remain present at all times. Such acts interfere with the quality of care provided by the doctor and infringe on the patient’s rights to confidentiality and access to counsel. In states near the U.S. border, the threat is even greater, where immigrants often have to travel through checkpoints to reach medical providers. Even when CBP or ICE is unlikely to be present at a medical facility, immigrants remain afraid that hospital staff will alert officers to their presence and status.

The actions by CBP and ICE have severe consequences. Immigrants, especially those who are undocumented or have undocumented family members, are deterred from making regular medical appointments or from seeking emergency treatment when needed. Patients have died because they waited too long to get help. Furthermore, parents have avoided seeking insurance for their children, fearing that the personal information they use to enroll will be misused. Thus, immigrants are left vulnerable to illness, disease, or complications from existing conditions. The terror and stress regarding immigration status further aggravates symptoms of illnesses or disorders, making the need for access to medical care that much more crucial.

The right to health and to have access to health care is codified in Article Seven of the Universal Declaration of Human Rights. Nevertheless, a sizable population is denied that right in the United States. Medical providers should help fill the gap left by current U.S. law and policy, and should take steps to make their workplace a safe space for everyone. Facilities can implement policies that protect patients, such as prohibiting immigration enforcement operations when agents do not have a warrant. Doctors must recognize and adhere to both their ethical duty of non-discrimination and their legal obligation to protect patients’ personal health information. It is vital that all patients are free to pursue medical care without fear of repercussion. Seeking medical treatment should not involve a greater risk to one’s life or health.

Executive Summary

A Child Rights Crisis

Policy debates rage over what has been termed a humanitarian crisis, a human rights crisis, or a national emergency at the U.S.-Mexico border. What is clear is that it is a child rights crisis. Unaccompanied children, adolescents, and young families have fled in increasing numbers from violence in the “Northern Triangle” countries of Central America – El Salvador, Guatemala, and Honduras – and have been met at the U.S. border with harsh and punitive policies which violate their rights and compound existing trauma, thereby threatening the health and well-being of thousands. These policies are justified in the name of deterrence.[1] However, if persecution and violence are the primary factors influencing migration, harsh border enforcement will not serve as an effective deterrent and will only cause more harm to an already traumatized population.[2]

Though high levels of child migration have captured the national attention, there has been comparatively little medical research in the United States about child asylum seekers’ trauma experiences and resulting negative health outcomes. However, the limited number of studies of immigrant and refugee children who have resettled in developed countries have identified a high rate of trauma exposure and high rates of depression, post-traumatic stress disorder, chronic pain, musculoskeletal injuries, scars, and neuro-cognitive problems.[3]  The aim of this study is to provide the first detailed case series of recent child and adolescent asylum seekers in the United States.

This report communicates the findings from more than 180 physical and psychological evaluations of children seeking asylum in the United States. The evaluations were conducted by members of the Physicians for Human Rights (PHR) Asylum Network between January 2014 and April 2018 and were analyzed by medical school faculty and students from Weill Cornell Center for Human Rights. The vast majority of the children evaluated were from the Northern Triangle countries (89 percent), of El Salvador, Guatemala, and Honduras. Children reported that they survived direct physical violence (78 percent) and sexual violence (18 percent), threats of violence or death (71 percent), and witnessing acts of violence (59 percent) in their home countries. This violence was most often gang-related (60 percent), but a significant portion of children (47 percent) faced violence perpetrated by family members. PHR’s clinicians documented negative physical aftereffects of this abuse: from musculoskeletal, pelvic, and dermatologic trauma to severe head injuries. 76 percent of children were suspected to have or diagnosed with at least one major mental health issue, most commonly post-traumatic stress disorder (64 percent), major depressive disorder (40 percent), and anxiety disorder (19 percent).  Furthermore, children reported that government authorities in their home countries did not effectively prevent, investigate, prosecute, or punish crimes against children.

These findings document that children arriving in the United States are fleeing severe forms of harm which may amount to persecution if their home government is unable or unwilling to control the perpetrators, and if their persecution is based on their race, religion, nationality, political opinion, or membership in a particular social group. Asylum jurisprudence in the United States and internationally recognizes that gang and domestic violence may amount to persecution. In accordance with international and U.S. law, individuals with a credible fear of persecution arriving at the U.S. border have the legal right to apply for asylum. International and U.S. law also prohibit the return of any individual to a country where they face persecution, torture, ill-treatment or other serious human rights violations, with children deserving heightened consideration.[4] Child asylum seekers are also entitled to additional protections under international and U.S. law, including accommodations in the asylum process which take into account their level of development and maturity and their specific health and mental health needs. The right of children to be heard and to remain with their parents, as long as it is in their best interest, is recognized as a civil and political right.

The findings in this report and the relevant legal standards demand an effective and humane policy response both in countries of origin, to prevent the violation of child rights, and in the United States, to fairly recognize claims of persecution and end practices that expose these young migrants to further trauma. PHR calls on countries of origin to urgently direct resources to end impunity and protect children. As a priority, governments must ensure adequate resources to investigate, prosecute, and punish violent acts against children, and establish or maintain independent investigatory bodies to address corruption and impunity. Governments must also ensure adequate resources for violence prevention and response, such as specialized police units, education initiatives, and specialized assistance for child survivors. Given the extreme levels of violence experienced by the children from the Northern Triangle evaluated by PHR, the U.S. administration must safeguard access to asylum in the United States, in order to meet immediate needs for protection and to maintain vital aid to Northern Triangle countries for addressing violence and instability in the long term. Since children’s health has been affected by repeated trauma exposure, the administration should ensure that all children receive pediatric medical screening upon arrival at custody and uphold child protection standards in custody, prioritizing least restrictive settings and increasing use of alternatives to detention.

Children arriving in the United States are fleeing severe forms of harm.

Background

Rising Numbers of Children and Families Seek Asylum in the United States

Since 2010, U.S. Border Patrol apprehensions of border crossers in the southwest sector of the U.S. border have hovered between 300,000 and 450,000 per year, much lower than in the past three decades, when apprehensions frequently exceeded one million.[5] However, the demographics of the border-crossing population changed in 2014. The number of children and adolescents arriving at the U.S. border rose dramatically, both in numeric terms and as a percentage of the overall number of border crossers, a wave of displacement known as “the surge” and now called by some a “national emergency.” The number of unaccompanied children (zero to 17 years old) apprehended increased from 16,000 in FY2011 to 50,000 in FY2018 (from five percent to 13 percent of total apprehensions),[6] and the number of families rose from 15,000 in FY2013 to 107,000 in FY2018 (from 3.5 percent to 26 percent of total apprehensions).[7] The number of teenagers crossing alone peaked in 2014 but is still high, while the number of families with younger children has remained consistently high for several years. Combined, these groups comprise almost 40 percent of apprehensions in FY2017 and FY2018.

Basic trends in U.S. asylum statistics indicate that the demographic increase in the number of children and families seeking asylum is due to people fleeing high levels of violence in Central America, rather than labor migration. The majority of individuals that Border Patrol has apprehended at the border are from the Northern Triangle countries, which have some of the highest rates of homicide in the world, resulting in epidemic levels of domestic, gang, and gender-based violence.[8]  The number of applications for asylum in the United States increased more than seven-fold from FY2009 to FY2013, and 70 percent of that increase was due to asylum applications from the Northern Triangle.[9] From 2012 to 2017, affirmative asylum applications from individuals from Central American countries rose again from 3,523 to 31,066, an almost eight-fold increase, with unaccompanied children comprising 66 percent of applications in 2015 and 56 percent in 2016 and 2017.[10] Asylum grant rates have also increased, which speaks to the validity of rising requests for international protection: 2010 to 2016 saw a 96 percent increase in the percentage of asylum seekers from the Northern Triangle who were granted protection.[11]

Family Separation and Child Detention Increase Health Risks

As early as March 2017, the U.S. government began physically separating thousands of children from their parents at the border, detaining them hundreds or thousands of miles apart, without tracking them or planning for their reunification.[12] This practice was implemented in spite of medical evidence that demonstrated how separation from parents increases the risk of post-traumatic stress disorder and depressive disorders in children, resulting in a negative impact on the cognitive and emotional functioning which can continue into adulthood.[13] The Trafficking Victims Reauthorization Act has substantial protections to ensure that children are screened and separated from traffickers posing as family members at the border, and, in the class action lawsuit won on behalf of the separated families, the government did not provide evidence of a security risk to the children to justify the separations.[14] Following a court injunction prohibiting further family separation,[15] the administration sought other punitive measures to deter children and families from seeking safety in the United States, as part of a return to the Consequence Delivery System known as the Zero Tolerance policy.[16] These measures included seeking to authorize indefinite detention of children in unlicensed facilities.[17] The administration detained thousands of children in a massive tent city[18] and targeted potential sponsors – to whom children could be released – for enforcement action, which resulted in a significant increase in the population and duration of child detention.[19]

Medical experts warned that the overall rise in numbers of detained children was vastly increasing the risk of serious health harm due to the dangerously inadequate conditions of confinement.[20] In December 2018, two children died in U.S. Department of Homeland Security (DHS) Customs and Border Protection (CBP) custody[21] and in May 2019, a 16 year old died in CBP custody and a two year old died, released on his own recognizance from CBP detention.[22] However, in February 2019, DHS was still holding an increased number of infants in detention, some for longer than the maximum 20 days stipulated in a 1997 court ruling, the Flores settlement agreement.[23] Research has shown that alternatives to detention are cost effective, humane, and contribute to improved health outcomes.[24] However, the Trump administration shut down the Family Case Management Program, which enabled families with children to remain in the community while their immigration proceedings were pending, with compliance rates of over 99 percent of families attending immigration court hearings and appointments.[25]

Recent Asylum Law Developments Threaten Access to Asylum

Despite indications that violence in Central America is a driving factor in the rise of asylum seekers arriving at the border,[26] the U.S. government has increasingly resorted to policies and practices which limit the right to seek asylum at all, such as “metering” at ports of entry, which requires asylum seekers to wait in a queue for weeks or months before being admitted for inspection.[27] The U.S. government has also implemented an unprecedented turn-back policy by which asylum seekers must wait in Mexico while their asylum case is considered, which puts them in danger of persecution in Mexico and limits their access to legal counsel for their asylum case.[28] Given the levels of violence reported by children in this study, these restrictive policies unacceptably block timely access to asylum procedures and put children in danger.[29]

Emerging displacement trends indicate that gang violence and domestic violence are among the most prevalent forms of persecution reported by asylum seekers in the United States, including children arriving from Central America.[30] Since gang violence and domestic violence can amount to persecution by non-state actors which the government is unable or unwilling to control, extensive domestic and international jurisprudence recognize the validity of asylum claims based on domestic violence and gang violence.[31] In March 2018, then Attorney General Sessions questioned whether domestic and gang violence survivors may be considered members of a “particular social group,” an essential element in an asylum claim, seeking to disqualify these individuals from claiming a credible fear of persecution.[32] However, Sessions’ decision was reversed in December 2018, when the U.S. District Court for the District of Columbia issued a permanent injunction, finding that the Attorney General’s policy violated the Immigration and Nationality Act.[33] This ruling reaffirmed that, in line with decades of domestic legal precedent, domestic violence and gang violence survivors have the right to apply for asylum if they express a credible fear of persecution.

Methodology

PHR Asylum Evaluations and the Istanbul Protocol

Members of the Physicians for Human Rights (PHR) Asylum Network collectively conduct approximately 600 forensic evaluations annually for asylum seekers involved in U.S. immigration proceedings.[34] These medical-legal affidavits are requested by attorneys who identify a need to document sequelae (aftereffects) that their clients exhibit as a result of physical and psychological trauma from torture or persecution. The declarations are conducted in accordance with the principles of the Istanbul Protocol,[35] the international standard endorsed by the United Nations to assess, investigate, and report alleged instances of torture and other cruel, inhuman, and degrading treatment. They are submitted to the Department of Homeland Security’s United States Citizenship and Immigration Services and the Department of Justice’s Executive Office of Immigration Review by PHR Asylum Network members to highlight the degree of consistency between the client’s account of persecution and their physical signs of injuries and psychological symptoms.[36] Although these evaluations alone cannot determine asylum claims, they document severe health and mental health harms experienced by the client, in order to assess whether or not the severity threshold for persecution has been reached. Other essential elements needed for the asylum case, such as determining discriminatory intent of persecutors or failure of the state to control persecutors, are not directly addressed in these affidavits. At times, collateral information in the affidavits may be present related to those elements of the asylum criteria.

Data collection and analysis

In preparation for the current study, PHR Asylum Program staff ran a search in the program’s case management database for the following inclusion criteria: juvenile cases with individuals age 18 or under that received forensic evaluations from PHR Asylum Network members from January 2014-April 2018 and in which full consent for the use of de-identified data for research and advocacy was obtained. At the time of the study’s conceptualization, 368 evaluations of asylum seekers under the age of 18 had been conducted. However, the program had only collected 18 completed affidavits. Program staff contacted the clinicians responsible for the remaining 350 completed affidavits to solicit redacted copies, finally reaching 183 affidavits in total. This sampling method excluded cases with individuals aged 19 years or older at the time of evaluation, cases that had incomplete or missing medical-legal affidavits, and cases in which consent was not obtained for the use of de-identified data. PHR staff redacted the corresponding affidavits of all cases that met the inclusion criteria for identifying personal information and stored them on PHR’s password-protected database.

The Cornell Institutional Review Board reviewed the research plan and approved compliance with Title 45 CRF part 46 provisions for protection of human subjects.

The co-investigators jointly developed a coding tool after reading the affidavits. Sources for the coding categories included United Nations protection assessments and validated clinical assessment tools, such as the Hopkins Symptom Checklist and PTSD Civilian Checklist. PHR staff carefully read through the affidavits to ensure that all were fully de-identified and stripped of their case numbers, with new study numbers assigned to each affidavit. Weill Cornell Center for Human Rights faculty and students coded the data using a standardized instrument capturing basic demographic information, trauma exposure history, vulnerability factors, and medical and mental health outcomes. They then entered data into a secure database using Qualtrics. The investigators also conducted a qualitative analysis of summarized trauma narrative notes entered into the coding tool using a quasi-grounded theory approach to describe emergent themes within the data and identify representative narratives and quotes. The members of the research team independently analyzed each trauma narrative in the affidavit, selecting direct passages and quotes, coding key concepts, categories, and themes/sub-themes through a process of open, axial, and selective coding. Members of the research team grouped text supporting each component and reviewed the initial individual coding results. Through an iterative and consensus-based process, the research team revised themes and sub-themes.

Limitations

This data was not collected uniformly for the purpose of research, because each individual evaluation was developed for use in the specific legal case of the client.

Due to PHR’s program modality, the study considered only child and adolescent asylum seekers with legal representation: it does not capture the experiences of children applying for asylum without an attorney (Nineteen percent of children whose cases began in FY2018 and 23 percent of children whose cases began in FY2019 have no legal representation in deportation proceedings[37]). There were very few detained child and adolescent asylum seekers included in the data set, which means that the findings do not focus on compounded and exacerbated trauma experienced by young detainees.

Finally, although many crossed the border as unaccompanied minors, most of the children and adolescents were reunited with family members prior to the evaluation. Thus, further study is needed regarding the specific experiences of unaccompanied children who do not join family members in the United States, as well as children crossing the border with their families.

Overall, generalizability is an issue with any type of research.  Both qualitative and quantitative measures have value in terms of characterizing trauma exposure and health outcomes, just as they have their limitations. The sample in this study is not a representative sample of all child and adolescent asylum seekers in the United States. However, when considered with other available evidence (known to be limited by a lack of appropriate intake processes, health screening, government transparency, and overall inaccessibility of this population), this data seems to support trends of high rates of violence and trauma experienced by children fleeing the home countries represented in this samples.

Findings

Introduction

The following accounts of children are taken from forensic evaluations completed by Physicians for Human Rights (PHR) clinicians who are experts in documenting trauma and persecution. For the purpose of accuracy, quotations are taken directly from the clinicians’ expert affidavits. Direct quotations from children are only included if present in the clinician’s evaluation.

Evaluations for 183 individuals were included in this analysis, including 114 male and 69 female asylum applicants, with an average age of 15 at the time of evaluation. The vast majority – 89 percent – were from the Northern Triangle countries of El Salvador (36 percent), Guatemala (19 percent), and Honduras (34 percent). Due to the evaluation’s focus on pre-migration trauma, the child’s experience in crossing the border is not mentioned in 50.5 percent of cases. However, out of the 49.5 percent of cases in this data set that mention the border crossing experience, 67 percent of those children crossed the U.S. border as unaccompanied children.[38]

The analysis which follows describes children’s experiences of violence and harm through the major analytical categories presented by the data: gang violence, sexual violence (perpetrated by both gang members and family members), and domestic violence, which can become implicated in gang dynamics. These three categories overlap considerably but are distinguished in order to identify descriptive characteristics of each. The children’s accounts also demonstrate repeated failure by states to protect children from harm and to prosecute and punish perpetrators of crimes against children. Separation from parents in the country of origin due to migration seems to increase children’s risk of abuse. Though the study primarily focuses on the abuses experienced in the children’s home countries that motivated their flight, some children also mentioned undergoing harm during transit and as a result of U.S. border and immigration enforcement, which exacerbated and compounded the harms they had already experienced. Finally, the study includes an analysis of the physical and psychological consequences or manifestations of trauma, as well as resilience factors in children. The findings are followed by an overview of the legal framework and policy recommendations, which suggest approaches to prevention and accountability for the human rights abuses described by the children.

Children Suffered Multidimensional, Recurrent, and Sustained Trauma

Complex trauma, as compared to acute or chronic trauma, involves exposure to multiple severe and pervasive events which have negative long-term effects.[39] The children evaluated experienced multiple forms of both direct and indirect trauma. A significant majority – 78 percent – suffered direct physical violence, and 18 percent were subjected to sexual violence. Nearly three quarters (71 percent) were threatened with violence or death (71 percent), and 59 percent witnessed acts of violence. Most of the violence the children experienced was gang-related (60 percent), but a significant portion of children (47 percent) faced violence within the home or perpetrated by family members, which prompted them to flee alone or accompanied by other family members. Additionally, children were vulnerable to other forms of deprivation and harm, including neglect, lack of access to primary education, homelessness, and child labor. 

All of these events constitute adverse childhood experiences, which have been strongly linked to a wide range of lifelong negative physical and mental health outcomes.[40] The health impacts of these experiences were further mediated by factors such as poverty and parental separation or death.

A lack of effective intervention from government authorities in their home countries to prevent, investigate, prosecute, and punish crimes against children was a major theme of the children’s stories. The report describes the leading categories of trauma exposure, other vulnerability factors, and negative health consequences experienced by this group of children.

The statistics in this report show that these children not only experience high rates of trauma, but often are subjected to multiple forms of trauma by multiple perpetrators. These results add additional context for the severe abuse described by the qualitative findings.

Gang Violence Terrorizes Communities

“I saw the four of them in their caskets, I never imagined to see them with shots all over their faces. I thought they were shot only once but their whole faces were shot with bullets.”

A teenage boy recalling the image of his murdered brother, aunt, uncle and cousin

A majority of children and adolescents assessed were victims of violence at the hands of gang members (60 percent) or forced conscription into gangs (24 percent). Gang members perpetrated repeated physical assault and beatings, sometimes aggravated assault with weapons including sticks, belts, bats, knives, machetes, and firearms, resulting in serious injuries. One young woman “reports having been beaten all over her body including her head, being dragged through the woods, being tied to her friends, blindfolded and raped by multiple people.” Another young boy describes a series of repeated attacks from gang members, including an attack with a machete “leaving a deep wound on his left knee,” being “cut with a knife,” a gang member “forcefully pulling his left arm behind his back and pushed him to the ground…his shoulder became painful and swollen, purple and painful to move” from a traumatic shoulder dislocation, cigarette burns to his arms, and repeated trauma from punches and kicks to his body.

Additionally, children often witnessed brutal acts of violence against their own families or members of their communities. Witnessing violence is a traumatic event which results in serious negative mental health outcomes for children.[41] One teenage boy recalled the image of his brother, aunt, uncle, and cousin in their caskets: “I saw the four of them in their caskets, I never imagined to see them with shots all over their faces. I thought they were shot only once but their whole faces were shot with bullets.”

Another boy described a memory “seared into [his] brain. At 16, he came upon a decapitated head whose face had been peeled off intact and placed next to the head. This horrific sight caused nausea as well as a growing and persistent sense of fear. This image often intruded into his nightmares.” Gangs often used shocking tactics to incite fear, or as a warning to those attempting to resist. One young woman described her brother-in-law’s brutal murder: “His body had been discovered in the very location she was supposed to deliver [his] children. His body was dismembered and had been put in several different bags, his hands and feet were tied and he had been severely beaten…. She continued to receive threats for over a year after his murder.”

Children reported that the gangs forced them to choose between joining the gang and being murdered.

Children reported that the gangs forced them to choose between joining the gang and being murdered. One boy refused to join the gang, so the gang members took him into the woods and beat him on the head and body with their fists and with rocks until he was unconscious. If children did join the gang, the coercion continued with the demands of the gang. A 16-year-old described how he was faced with an ultimatum to kill his uncle and anyone else in the uncle’s household: “Kill them or you die.” When he found his uncle’s daughter and pregnant wife in the home, “he knew that it would be wrong to kill those children or to leave them without a father so he just could not do it. Instead he greeted the girl and kissed her on her head and left. He went to his girlfriend’s home and held his newborn son. Holding the boy in his arms, he knew he had to change because the life he was living was not one in which he wanted to bring a child.”

Children reported gang members kidnapping them, holding them hostage, or enslaving them. One young girl explained her terror after being kidnapped, “feeling like at any moment the gang would come pick her up and kill her and her family. She described eating and sleeping very little, waking up at night in a panic. She described being unable to close her eyes, and breathing very quickly.” Another young girl who was kidnapped by a gang member describes her brutal ordeal. Her kidnapper “repeatedly raped, beat, and terrorized her over the course of the next 3 years. He forced her to collect money from people, allowed her to be raped and beaten by other gang members, and threatened to kill members of her family if she ran away. He made her pregnant twice and at one point drugged her and tattooed his name on her back.”

[A] young girl … was kidnapped by a gang member [who] repeatedly raped, beat, and terrorized her over the course of the next three years. He forced her to collect money from people, allowed her to be raped and beaten by other gang members, and threatened to kill members of her family if she ran away.

The geographical reach of the gangs extended to private homes and community spaces, giving the feeling that nowhere was safe. One boy detailed his encounter in a grocery store during which a “man grabbed his hand and quickly cut the 5th digit of his left hand with a machete as ‘a warning,’ indicating that if he did not join the gang he would ultimately be killed.” Gangs also used social media to make threats and assert their sphere of influence. One boy reported that even in the United States, gang members on Facebook threaten to kill him if he ever returns to El Salvador.  Since arriving in the United States, a girl continues to receive threats of physical harm on Facebook from gang members who wanted her to be their ‘girlfriend,’ saying they will look for her and find her if she returns.

Children Targeted for Sexual Violence

Almost 20 percent of the children evaluated by PHR experts experienced brutal and repeated sexual violence or exploitation, including rapes that resulted in adolescent pregnancy. Children described being kidnapped, exploited, and trafficked for sex. One girl told the PHR clinician that she did not tell her mother about the gang rape, telling her instead that she migrated to the United States out of a desire to study, because she was worried about her mother’s safety.

Much of the violence perpetrated by gang members was sexual in nature, ranging from coercion to become the ‘girlfriend’ of a gang member, to subjecting children to brutal group assaults. One young woman described her experience being gang raped: “When she refused [to have sex with gang members], multiple of the gang members raped her and told her they would hurt her mother and father if she continued to refuse…. She recalls having a severe headache, vaginal bleeding, and pelvic pain for approximately one week.”

Children reported sexual violence committed by family members. One girl described the devastating rape by her cousin as “he started to choke her and then pushed her onto a bed…. He pushed her arms back over her head and raped her. She states that she stopped fighting back at some point so he would stop hitting her.” A young boy described a time “when he was four or five, an uncle he was staying with, who he hardly knew, summoned him and his brother to join him in the shower and was made to touch his genitals under threat of killing his sister.” Another girl described sexual assault committed by her mother’s boyfriend, who groomed her for touching, nude photos, forcing her to perform oral sex, and finally vaginal penetration. “Even though she detested everything [he] made her do to and with him, [she] felt unable to say anything to anyone because [he] threatened to take her away from her family and said that he would force her to do things that she did not want to do. Her family was completely unaware of the daily sexual assault that was occurring while they were out of the home.”

These acts of sexual abuse and assault, especially when experienced at such a young age, lead to lasting trauma, often manifested as feelings of dissociation, impaired psychological development and self-image, and social isolation. A 17-year-old girl described how her rape at age 13 affected her. She said, “I continued walking to school but I felt like it wasn’t really me walking. I felt like it was someone else outside of my body. I felt that everything was different, I didn’t ever want to be with the other girls. I felt that they were little girls and I was not.”

Domestic Violence Normalized

Child abuse is so common that even when a beating resulted in an open cut that required many stitches, no one at the local health facility asked any questions about how the injury happened.

Nearly half of the children in this study (47 percent) reported experiencing violence in the home or at the hands of family members. Children often reported their parents as perpetrators of this abuse, as well as other family members or caretakers including aunts, uncles, grandparents, or older cousins. In addition to the acts of sexual violence described earlier, children reported that family members attacked them physically and subjected them to verbal and emotional abuse. The children evaluated by PHR fled their abusers, either alone or with other family members.

Reporting violence and abuse was dangerous for children, as it could anger their abusers. One girl reported her punishment after a diary detailing her abuse was found: her grandfather burned her with molten pieces of plastic, resulting in severe, painful burns and lasting scars on her legs. Due to the prevalence of violence in some communities, abuse became normalized in community structures. A 16-year-old girl reported that child abuse is so common that even when a beating resulted in an open cut that required many stitches, no one at the local health facility asked any questions about how the injury happened. However, gang members in town knew about the abuse that she was suffering and repeatedly offered to help her “take revenge.” Gangs may perpetrate cycles of violence, as domestic abuse cases become gang-involved. Gang members told a 16-year-old boy that he must kill his uncle because, since everyone in the community knew that the uncle had abused him when he was a child, not vindicating the act would make the gang look “weak.”

Domestic violence was also linked with homelessness, as some children were forced to leave their homes by family members.  One child reported squatting in an abandoned house in a neighborhood with high gang activity after feeling unsafe in her home, leaving her vulnerable to being targeted. “One night, when she was staying alone at the house, a man from one of the gangs came by. There were no locks on the door, and she was too frightened to move, so she just lay in her bed, very still, hoping he wouldn’t find her. He found her in the bed, and he raped her. Afterwards, he threatened her, saying that he would kill her.”

Abuse by caretakers is deeply confusing for children, since, as authority figures, caretakers should help children grasp normal behavior; abusive treatment prevents children from properly interpreting the world around them. One boy explained that when his grandmother beat him, “he would space out in a dissociative manner …; he would effectively leave his body as though he were watching himself getting hit. He would wonder, ‘Am I bad?’ in an effort to make sense of the beatings…. He believes that if he’s getting hit it must be because he is bad.” 

Children were often punished severely for developmentally normal acts, such as bedwetting or doing housework incorrectly. One girl described how her father would check each night to see if she had wet the bed and, if she had, he would violently pull her out of bed, take her outside, and beat her with his hands, belt, and rubber sandals. Her mother and siblings witnessed the abuse but felt too afraid to stop him. A boy described how he and his brother were both forced to kneel for hours on spikes while their arms were tied behind their backs and burned with a hot knife for not completing chores.

Abused and mistreated children also experienced deprivation and neglect, often manifesting in food insecurity and hunger, homelessness, disenrollment in school and lost access to education, and labor exploitation.  One child described living with a physically and verbally abusive father who repeatedly attacked and mistreated him and his siblings. “He continued to beat them with his hands, feet, and belts.  He also deprived them of food, spending his money on alcohol, so they regularly showed up to other family members’ homes for meals.” Another child described that his grandparents “would hit [him] and yell at [him].  After being hit, [he] was often forced to gather wood and was not fed.”

Many children were forced to drop out of school due to lack of safety in the community and at school, parental neglect, forced child labor, and exploitation. One girl stopped attending school altogether for about a year after a gang had threatened to tie her brother to a chair and make him watch while she and her sister were raped and murdered. There were a lot of gang members around the school and she felt watched. One 12-year-old boy reported that he stopped attending school because his father forced him to work in corn fields and care for livestock. He was repeatedly told that he was “worthless” and hit with belts and cables. During this child’s forensic evaluation, the evaluator observed that he became very quiet and stared at the floor.  When asked if he was alright, he said, “Not really, I am reliving the whole experience.”

States Fail to Protect Children

“I saw that one of my cousins had been shot in the stomach by the police. He was nine. After my cousin was taken to the hospital, [t]he police officer asked
me and my family where he was so he could finish him off.”

17-year-old boy from Honduras

Children articulated a consistent failure of state protection. Although children may be less likely than adults to report crimes to the authorities due to their less developed understanding of government structures, children in this study repeatedly described situations where government authorities actively abused children, failed to effectively protect victims, did not investigate crimes, and did not prosecute or punish perpetrators.

Direct Police Brutality Against Children

Some children reported experiencing or witnessing direct police brutality against children. One boy detailed his family’s experience with the local police, recounting a nearby shooting: “We lived on one street and on the other street we heard all the gun fire that was happening. I saw that one of my cousins had been shot in the stomach by the police. He was nine. After my cousin was taken to the hospital, [t]he police officer asked me and my family where he was so he could finish him off.” Another was sexually assaulted. She was able to identify her attacker and was assigned a detective, who she at first believed was helping her. He told her that he was taking her to see a psychologist who could “erase” everything that happened to her, but instead he took her to a hotel and sexually assaulted her. In another case, after seeing the body of a murdered taxi driver, one boy described his predicament: “The police themselves were corrupt, offering no protection for the citizens but rather engaged in violence and extortion themselves. [He] was both terrified of the police and fearful of retaliation if he cooperated.”

Children reported that some police officers committed or threatened violence in order to extort bribes. The police either demanded money to file a report or robbed the victim. In one case, “the police detained [a boy] on false charges for about two hours. During this incident, the police beat him and stole his possessions before releasing him to his mother.”

Gang Intimidation and Infiltration into the Police

A common pattern related to the failure of state protection is gang intimidation of the police and gang infiltration into the police. Reporting or being thought to have reported crimes to the police brings down swift gang retaliation. One girl explained that “if people reported gang-related crime to the police, they would be very slow to arrive at the scene of the crime or to file reports. The police were scared of the gangs, hence the gangs controlled most of what happened in the town.” One girl realized that her boyfriend was involved in a gang when she found pistols hidden in the house. When she confronted him, he threatened to kill her if she told anyone. The girl told the PHR clinician that her boyfriend’s gang was affiliated with the police and if she had tried to tell the police, they would simply have informed her boyfriend, putting her in danger.

In a case of gang infiltration, a police officer accused a boy of being a member of the MS-13 gang and hit and kicked him to force him to admit to gang membership – then, the same police officer told the boy that he (the police officer) was a member of the rival 18th Street gang. As the boy walked home after the beating, members of the MS-13 gang physically assaulted him, suspecting that he had spoken to the police officer about their activities. The boy told the PHR clinician that he considered reporting the police officer but decided not to because his family was afraid that they would not be protected from reprisals. A girl reported that her family was targeted after her stepfather told the police about seeing bodies dumped in the river; in retaliation, gang members came to her home and raped her. Her family fled the country shortly afterwards without reporting the assault, having understood that the police were providing information to the gang. Another boy mentioned that he never even approached the police after receiving death threats for refusing to join a gang, since the police were known to collaborate with that gang.

“The police themselves were corrupt, offering no protection for the citizens but rather engag[ing] in violence and extortion themselves.”

A boy recounting his dilemma after seeing a murdered taxi driver

Failure of Police to Respond Despite Knowledge of Crimes

In other cases, the children reported that the police failed to take action, despite knowing about crimes committed against children. In one case, some boys, including the client’s brother, were kidnapped, tortured, and killed due to inter-gang violence. Despite knowing about the murders, the police did not investigate or make efforts to protect other children; they simply warned the client that he could be the gang’s next target.

One girl reported knowing from early childhood that the police in her country never protected girls or women in her neighborhood – she knew they would not come to the scene when crimes were committed and that they did not enforce laws against gang violence. A brutal gang rape occurred at a soccer game in her town, but the police, fearing the gang, did not investigate or make any arrests. The girl remained indoors for weeks, saying, “I was terrorized with fear that something could happen to me, that I would be the next victim.” Said another girl, “The police are far away and in any case do nothing to help. There is no one else in the town to call for help.” One young girl’s sexual assault by her grandmother’s husband was videotaped by a neighbor, who tried to use the video to blackmail her into sex. When she refused, the neighbor circulated the video in the community, and she was stigmatized and blamed by community members for the abuse; “It was generally known and accepted as a matter of course that the police would do nothing about cases such as hers.”

Even when child victims or their parents try to pursue legal action to protect the children, the system is ineffective. An eight-year-old girl explained the authorities’ reaction when her family reported that she had been sexually assaulted: they refused to investigate and “even became angry that they were ‘bothered’ about something like childhood sexual abuse.” Another girl described a time when she tried to call the police for protection from her abuser. The police came to the scene, but instead of helping her, they told her to “take care of [her] family problem.” In one case, a daughter told her mother that the mother’s boyfriend was sexually abusing her. Her mother believed her, forced him to leave the house, and filed a police report; however, there was no police investigation of the case or action against the abuser. 

Without Parental Protection, Children Face Greater Risks

Many children in this study were separated from their parents in their home country as one or both parents either left for the United States or were killed. Out of 183 children, 130 reported some form of parental separation or death; in the remaining evaluations, that data was not collected. Out of the 130 children reporting separation, 63 percent reported that at least one parent was in the United States (usually the primary caretaker), 36.9 percent reported that both parents were in the United States, and 16 percent reported that their parents had died, usually killed by gangs.[42] Results of parental separation included an increased susceptibility to further trauma, neglect, and the burden of becoming a caregiver for younger siblings and family members.

While parental separation can itself be traumatic, the resulting lack of parental protection left children vulnerable to further trauma perpetrated by extended family members or others in the local community. For example, one victim of repeated sexual abuse pleaded with the perpetrator, her cousin, and asked why she was being targeted; the cousin replied, “Because there is no one here to protect you.” Another girl had been left under the care of her grandfather, but he passed away when she was 13, whereupon other family members repeatedly sold her as a prostitute.

One victim of repeated sexual abuse pleaded with the perpetrator, her cousin, and asked why she was being targeted; the cousin replied, “Because there is no one here to protect you.”

Parental absence left children at risk for neglect. One child described his experience being shuttled between distant family members: “Over the next three years, they did not have stable shelter, sometimes slept on the streets, went hungry, did not regularly attend school, and faced the abuse by family members, strangers, and gang members. He reports feeling ‘alone in the world’ though also felt responsible for his younger brother.” In addition to the lack of parental protection, these children were targeted due to the remittances sent by the absent parent. One girl said that she “did not feel safe and felt there was no one to protect her. The only thing she felt she could do to escape abuse was to go to another family member’s house, but then often the abuse continued.… ‘no one loved me’, she stated, ‘They didn’t care about me, they just wanted the money my mom sent them for me.’”

Smugglers Harm Children in Transit

Though the focus of the evaluations was pre-migration trauma related to the asylum application, numerous children assessed in this study described traumatic experiences while in transit to the United States. Many of the vulnerabilities of the children in their home countries were exacerbated during the journey.

Children report being abused, threatened, and assaulted by smugglers or other migrants during their journey. One girl described her travel alone toward the United States and detailed how a trafficker sexually assaulted, kidnapped, and threatened to murder and dismember her: “One of the coyotes who had a gun, began to touch her breasts and genitalia, and no one did anything, although others noticed. ‘You’re mine now. No one is going to help you,’ the coyote said to her.”

One boy was only seven years old when he traveled from Guatemala to Mexico. In Mexico, the smugglers separated him from his mother and told him to hide in a sewer. He was chased by police officers, with dogs, who threw a kind of gas that made him cough and vomit. “He wasn’t expecting this ordeal and wanted to go home. Later he was taken to a house where he cried for his mother, fearing that she’d been detained. He was in several houses over the course of one month and he reports being abused – his head was shaved; he was hit on his back when he cried.” An 11-year-old girl fleeing sexual harassment and domestic abuse travelled to Mexico with a group of children. The group stayed at a housing facility for people waiting to cross the border, which was a large, filthy room with rats, spiders, and piles of garbage. When she refused to engage in sexual relations with “El Gordo,” one of the people in charge of the housing facility, he punished her by making her sleep near the garbage.

In addition to facing cruel treatment from those they met on the journey, the children described the surrounding terrain and overall conditions of the voyage as harsh and extremely dangerous. A boy fleeing gang extortion and forced conscription described traveling through the desert to cross the border. “There was a time when he was lost for three days without food or water. He feared that he would die of dehydration or from an animal attack.” One girl described a frightening and unsafe river crossing: “The person helping her to the United States was taunting her and the other children when they got to the river. She reported that he was discussing the consequences of falling into the river, including certain death. She stated that the group used a tire and rope (which had been tied to a tree) to cross the river.”

U.S. Border Enforcement and Immigration Detention Traumatize Children

Children continued to recount negative experiences at the hands of U.S. government officials upon arrival in the United States. A girl reported that dogs and immigration officers chased her through a field and that one of the dogs tried to bite her. The officer handcuffed her and put her in a car. Another child felt he would be protected if he could only get to the United States. He explained that when he crossed the border and was apprehended by U.S. agents, he shouted out, “I am fifteen,” because he knew that 15-year-olds are entitled to rights as a minor. He described those few minutes as “the scariest moment of [his] life.”

Children also described U.S. detention centers as intimidating, scary, and inadequate. One girl reported that another person in detention had groped her. The officer took her statement and reviewed video footage, but questioned her account, saying that he could not see the event on the video. She asked, “What would I gain from lying about this?” However, the detention facility staff returned her to the same detention area in which she had been groped. One boy recounted that, after being handcuffed, he and his cousin were taken to a facility and interrogated. Because he was a minor, he was separated from his older cousin and taken to a children’s residence. He later found out that his cousin had been deported. He described the fear caused by the lack of information about the immigration process and whereabouts of his family members: “When I was there, I was scared and I didn’t know what was going to happen.  I didn’t know what had happened to my cousin.” Another boy spoke of his experiences in La Hielera (‘the icebox,’ a term used to describe U.S. Customs and Border Protection holding cells). He suffered hunger because he was only occasionally given cookies and juice to eat. He remembered that his first day at La Hielera was also his birthday. A clinician observed in an interview with a girl, “She was stoic throughout the interview when describing her torture, and only became tearful when describing being detained in a cold cell on the U.S. side of the border.”

Physical and Psychological Manifestations of Trauma

“The rape is still with me…. I am no longer the same as all the other girls my age…. I’m different. This has changed me forever.”

18-year-old girl from El Salvador

The impact of this complex trauma often resulted in serious effects on these children’s health. The surveyed group presented many medical problems, including acute musculoskeletal and dermatologic trauma, such as bruising, cuts, bleeding, and both acute and chronic pain. Sexual assault survivors often reported pain, bleeding, and, in several instances, unwanted pregnancies. Physical injuries resulting in scars were documented in numerous cases from lacerations, burns, gunshot wounds, and other acute trauma injuries.  Head injuries resulting in concussions and potential neurocognitive effects were also suspected in some evaluations. However, the most significant burden of illness in this population was the psychological sequelae of trauma and abuse.

In our sample, 76 percent of children were suspected or diagnosed to have at least one major mental health diagnosis, most commonly post-traumatic stress disorder (PTSD)(64 percent), major depressive disorder (40 percent), and anxiety disorder (19 percent). The affected children exhibited a broad range of symptoms, from dissociative reactions to symptoms of flashbacks, nightmares, sad and depressed mood, hopelessness, guilt, anger, irritability, and many others commonly associated with these conditions.

76 percent of children were suspected or diagnosed to have at least one major mental health diagnosis.

A nine-year-old boy continues to have PTSD symptoms, such as intrusive thoughts about his abusive father, waking several times per night in fear. He feels safe in the United States but fears that his mother will be killed if they return to Honduras. The clinician noted that his symptoms, along with his young age, may make it difficult for him to consistently narrate his experiences clearly and coherently, especially in high pressure settings such as an asylum interview or an immigration court hearing. A clinician evaluating a seven-year-old boy noted that he laughed and then refused to speak during the evaluation; these are normal reactions to cope with the stress of recounting abuse but could negatively impact credibility in asylum proceedings. Said the clinician, “I had brought a variety of dolls and action figures to the interview. He chose a very big action figure and a smaller doll and had the action figure hit the doll hard several times. When he used the action figure and doll to demonstrate how his father used to repeatedly hit his mother, he began to laugh. In part, this was due to the developmentally normal pleasure in play. It was fun to have dolls at his disposal. However, it is my clinical judgment that the laughter was primarily generated as a defense against keen anxiety. After enacting the father’s attack on the mother through the dolls – an attack in which the attacker was strikingly larger than the victim – he appeared exhausted, stating, ‘I’m done.’”

Even after children arrived in the United States and were placed in stable environments, the lasting impact of trauma was evident in their ongoing difficulties with emotional regulation, social interactions, and bonding with parents and other caretakers. Children often spoke of continued distress, and family members or evaluators frequently described abnormal development and relationships. One evaluator wrote, “He has difficulty connecting to his parents, is extremely quiet, and only speaks when spoken to.” The same child was also described as having verbally and physically violent outbursts, and “has expressed suicidal thoughts and emotional numbing.” He is further described as having “a lack of psychological fluency, impoverished personal narrative, and apparent difficulty working with perceived authority figures.” These children also often described difficulty forming healthy relationships and an inability to trust others because of their experiences.

One boy stated that he “does not feel as though he can trust anyone at his school or community.” Additionally, children faced frequent reminders and triggers of their past trauma. An evaluator described the reactions of a young woman she interviewed, detailing her current experiences in the United States: “When she sees a group of men, which will trigger memories of what happened to her … she feels a 9/10 [degree of fear]…. In these moments she does not know what to do and feels confused and frozen. She avoids activities such as shopping if there is a chance she will see men there. She feels afraid if she hears men yelling. She thought that the ‘white’ immigration officers would assault just like they did in Honduras. She can’t trust people and feels on edge; once a male friend tried to give her a hug but she felt frightened.” The client herself described how she does not “want to get married because [she] feel[s] disgusting.” Trauma expertise is essential to support children to tell their persecution story. One clinician stated, “X was helped with gentle breathing and grounding techniques to help her compose herself. Given her dysregulation and concern of re-traumatization, the self-soothing techniques helped her regain emotional regulation [while narrating the sexual abuse she survived].”

In some of the most alarming examples, young children and adolescents reported emotional distress from both past and recent suicidal ideation or suicide attempts. Some of these experiences occurred during past periods of trauma and abuse in their country of origin. For example, a child described her suicidal feelings after years of abuse by her aunt. The years had taken quite a toll on her, until she finally “attempted to kill herself by cutting her wrists with a razor blade. She recalls ‘not knowing what else to do.’ When her aunt saw what she was doing, she grabbed her cut wrist and said, ‘If you really want to die, you have to do it deeper,’ and dug her long fingernail into one of the cuts.” In other cases, the psychiatric illness and suicidal ideation are present at the time of evaluation. One eight-year-old child’s mother reported, “He loses his temper every day, throws things at the wall, smacks himself, and is not aware of what he is doing.” This type of irritability is common in children who have experienced trauma and is considered a symptom of depression. The clinician noticed that his facial expressions were either sad or flat and expressionless; even when saying,“Playing makes me happy,” his facial expression did not match the statement. His mother told the clinician that when her son is in a bad mood, he says he would rather die.

Children Demonstrate Resilience

Despite the extreme trauma these children have experienced, and their resulting developmental, psychological, and physical harm, many reported successfully rebuilding their lives in the United States, where they are safe and secure from physical harm. An adolescent explained his transition, stating “Whatever happened in my country can stay in my country – now that I’m here, it’s like a different world; I don’t want to remember the other world anymore.” Another boy describes being free to live without hiding his sexual orientation: “I didn’t plan to come here, it just happened [because] the situation was getting worse, especially for gay people. They don’t have the freedom to go out, have parties, or have relationships. They are criticized, and they can be killed. Here I don’t hide who I am.” Another young boy, who is an evangelical Christian and comes from an indigenous group, reported that in his country he hid his ethnic and religious identity even from his friends; he was particularly afraid that his traditional dancing would cause him to be a target of violence, as it did not fit dominant cultural views of masculinity. In the United States, he has joined a dance group in his church where he is able to wear his traditional costumes and dance to indigenous folk music.

Many of the children whose cases were analyzed for this study demonstrated resilience and significant physical and psychological improvement since coming to the United States. One boy explained the change, describing how “ever since coming to the United States [he] feels happier. [He] states that he no longer feels scared, can sleep through the night, concentrates well at school, and gets along well with his family. [He] states that he has made many friends at school and has a few friends that live near him and will sometimes meet them to play soccer in the park.” A girl described her life in the United States: “I walk, work, get fresh air, listen to music, try to have conversations with other people. I guess I can see the beauty of the world.” Another boy has scars and joint pain from the blunt force trauma he sustained during beatings, during which he also sustained significant head injuries resulting in concussion and post-concussive syndrome (loss of consciousness, vomiting, months of headaches). Due to years of abuse by gangs, he made two suicide attempts in his home country. The clinician concluded, “Although his current symptom burden is much less, it is significant that this drastic improvement seems largely facilitated by finding relief from his violent circumstances and safety in the United States”

Another crucial component of these children’s recovery is the ability to envision a better and more hopeful future and to make a contribution as a valuable member of society, including through turning their negative experiences into a way to help others. One child described how “she feels safe in the United States. She hopes to attend university to become a psychologist. She wants to feel better herself and then help others overcome fears and trauma, especially sexual trauma.” Another explained his goals, describing how “when he is older he wants to be a lawyer so he can protect and defend his family. He also wants to be in the military in the United States to defend the United States and his family from danger. He wants to stay in the United States so he can reach his goals.” One “likes the idea of being a police officer so he can help people;” another “wants to study criminal justice. He says he is very interested in justice. When asked why, he states that he ‘wants to help provide justice to people who don’t have it, including those of [his] country.’”

Legal Framework

Human Rights Law Standards

Since 89 percent of the children in the data set come from countries in the Northern Triangle – El Salvador, Guatemala, and Honduras – and transit through Mexico to seek asylum in the United States, the legal framework reviews relevant provisions governing the protection of children from the forms of violence mentioned in the study, both in Inter-American regional standards and national laws in the children’s respective home countries. When states persecute or fail to prevent persecution on the basis of race, religion, nationality, political opinion, or membership to a particular social group, international law provides asylum as a solution to meet those protection needs. Since the study’s findings indicate a failure of state protection according to these standards, we then review the legal basis for possible asylum claims in the United States as well as international and U.S. legal and policy standards governing the treatment of child asylum seekers.

Protections under International and Regional Law

The International Covenant on Civil and Political Rights guarantees rights to all individuals within a state party’s jurisdiction, regardless of national or social origin, without discrimination.[43] These rights include the right to life, the prohibition of torture or cruel, inhuman or degrading treatment, prohibition of arbitrary detention, and humane treatment for detainees.[44] Protection of the family unit by the state is also a recognized civil and political right.[45] Finally, children’s right to special protection, regardless of national or social origin, is also recognized as a civil and political right.[46]

The American Convention on Human Rights explicitly establishes the rights of children. For example, article 19 states, “Every minor has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.”[47] The American Convention does not permit suspension of any rights pertaining to children or the family; the Convention is different from all other human rights instruments in this aspect.[48] The Inter-American system integrates regional documents and court decisions with the United Nations Convention on the Rights of the Child (CRC) and decisions of the corresponding committee to establish the rights of children.[49]

In this respect, the Inter-American system recognizes principles such as the best interests of the child, as established in the CRC.[50] Numerous advisory opinions and court decisions of the American system have confirmed the validity of child rights standards in practice,[51] including protections for street children,[52] protection of children from police brutality,[53] reparations for denial of education for children,[54] and accountability for detention conditions.[55]

Specific protection against gender-based violence, including domestic violence, is also addressed at the regional level. The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, known as the Convention of Belém de Pará, calls for the protection of women and girls from physical, sexual, and psychological violence.[56] The Convention specifies that women should be free from violence perpetrated by assailants who are known or unknown, including when occurring in domestic or interpersonal relationships.[57] The Convention has been ratified by 27 states and acceded to by another five states, evincing recognition in the region of state obligation to protect women and girls from violence.[58]

Protection under National Laws

The Northern Triangle countries – El Salvador, Guatemala, and Honduras – and Mexico have laws in place to protect children, but enforcement remains a challenge. El Salvador, Guatemala, and Honduras have criminalized child abuse, but it remains a serious problem in all three countries as well as in Mexico,[59] with an extremely high rate of impunity for crimes against children in Guatemala.[60] Domestic violence is against the law in El Salvador and Honduras,[61] however, domestic violence laws are poorly enforced in El Salvador, and punishments for domestic violence vary widely in Honduras.[62] In Mexico, spousal abuse is not criminalized under federal law, and state laws on domestic violence are often unenforced.[63] Guatemala, El Salvador, and Mexico have enacted statutory rape laws,[64] but Honduras does not even have a law criminalizing statutory rape.[65] Reports indicate that the sexual exploitation of minors remains a problem in El Salvador, Honduras, and in the border regions of Mexico.[66] The U.S. State Department reported that rape laws were ineffectively enforced in both El Salvador and Guatemala in 2018.[67]

Responses to gang violence in the region mostly take the form of punitive security policies with names like “Iron Fist” and “Zero Tolerance”, which rely on mass arrest, incarceration, and militarized policing, with reports of police brutality and extrajudicial killings.[68] Alternative approaches such as safe school initiatives, specialized services, and violence prevention measures are positive, but chronically underfunded and limited in capacity.[69] High-level initiatives to end corruption and impunity for violence, such as the UN’s Commission against Impunity in Guatemala, though widely popular, face political opposition and an uncertain future.[70]

In spite of the existence of regional and national laws which should protect children, these laws are not adequately enforced, which may amount to failure of state obligation to protect children.

International Law Requires a Due Diligence Standard

Adequate legal framework is important, but not sufficient for the protection of children. Even when violence or persecution is not committed directly by state actors, international law and jurisprudence makes clear that states are responsible for exercising due diligence to protect all people in their jurisdiction from attacks by non-state actors. Remedies must be accessible and effective in order to fulfill state obligations.[71] The due diligence standard requires that states effectively investigate, prosecute, and punish perpetrators, as well as provide effective protection mechanisms; failure to do so represents an abrogation of states’ legal obligations.[72] In addition to state failure to investigate, which results in de facto impunity and encourages future violations, failure of the state to provide specialized services for children who are abandoned, neglected, or exploited can amount to a violation, because it exposes them to increased risk.[73]

More comprehensive approaches not only define the elements of a crime, such as domestic violence,[74] but also establish proactive measures to prevent and protect from violence, including creating specialized police officers to assist female victims[75] and promoting public education on gender equality and the rights of women.[76] Laws can designate appropriate methods of assistance for courts, health care workers, and police officers.[77]

Protections under Asylum and Refugee Law

U.S. and international refugee law provide a legal solution – asylum – for instances where severe harm on a discriminatory basis is combined with failure of state protection. When states fail to protect the basic rights of those within their jurisdiction, mechanisms for international protection are triggered. The principle of non-refoulement, which exists under international refugee law[78] and as customary international law,[79] prevents states from returning a person to any country where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.[80] A state is also prevented from returning a person to a third state where there is a risk of further return to the country where the threat exists to their life or freedom.[81]  Non-refoulement also implies an obligation of temporary admittance of asylum seekers at the border in order to assess asylum claims so as to ensure meaningful review and prevent returning individuals to serious harm.[82] Non-citizens who are lawfully present in the state’s territory are entitled to procedural protections before removal, including the opportunity to appeal the decision of removal.[83] The United Nations General Assembly has affirmed the principle of access to a fair and efficient refugee status determination process.[84]

The Cartagena Declaration on Refugees expands the definition of  ‘refugee’ to any person fleeing persecution on one of the five protected grounds in the Geneva Convention, or based on threats to safety or freedom by “generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances which have seriously disturbed public order.”[85] The adoption of this definition by 14 countries, including the Northern Triangle countries and Mexico,[86] indicates emerging local consensus that regional trends in forced displacement support a wider definition for application of refugee protections.

Asylum Protection from Persecution from Gang Violence

The UN High Commissioner for Refugees Handbook on Refugee Status Determination states that acts committed by non-state actors can be considered persecution if the authorities knowingly tolerate the acts, or if the authorities refuse or are unable to offer effective protection.[87] Asylum jurisprudence, in the United States and internationally, confirms that discriminatory attacks by non-state actors such as gang members can qualify as persecution for the purpose of asylum claims.[88] U.S. law recognizes persecution by non-state actors, as long as the asylum seeker is able to prove that the government is “unable or unwilling” to control the persecutors.[89] High rates of impunity, police and government corruption, and failure of police to either investigate reported crimes or offer protection indicate government inability or unwillingness to control non-state actors who are harming children. Relevant factors to understand the basis for gang violence survivors’ asylum claims include past resistance to gang activity, former or current gang membership, and whether they are victims or critics of the state’s anti-gang policies and activities.[90] When assessing the presence or absence of state protection, a lack of effective witness protection and public perception of seeking police help as futile or actually increasing the risk of harm are important factors to consider.[91] Generally, gang-related claims have been assessed under political opinion or membership in a particular social group.[92] For children targeted or recruited by gangs, courts have recognized that their age, in other words, their identity as “children,” may also be considered as a protected particular social group which may fall under criteria for asylum.[93]

Asylum Protection from Persecution Involving Domestic Violence

International human rights law makes clear that severe forms of domestic violence, in the absence of state protection of victims, can amount to violations of the right to freedom from torture and inhumane treatment.[94] Asylum jurisprudence, in the United States and internationally, confirms that, for the purpose of asylum claims, discriminatory attacks by family members or intimate partners can qualify as persecution when government authorities do not provide effective protection.[95] UN High Commissioner for Refugees’ interpretive guidance advises that domestic violence survivors may be considered members of a particular social group with gender as an immutable characteristic, or gender combined with relationship status, national origin, or other characteristics.[96] A recent U.S. court ruling has reaffirmed the right of domestic violence survivors to pursue asylum claims based on credible fear of persecution as members of a particular social group.[97] U.S. courts have also recognized domestic violence as a form of persecution, which triggers the application of asylum protections, specifically in the case of abused children.[98]

Asylum Protections for Children

Children are uniquely vulnerable to child-specific forms of persecution, such as under-age recruitment, child trafficking, female genital mutilation, underage marriage, child labor, child prostitution, and child pornography.[99] Children are also likely to be more affected by harms to family members, especially parents, due to their dependency. However, states cannot expect children to participate in immigration systems and asylum proceedings in the same way that adults can.

Children may need accommodations or assistance in order to tell the story of their persecution, which takes into account their trauma, level of development or education, submission to authority figures, and lack of understanding of events in their home country and of asylum procedures.[100] In recognition of the particular vulnerability of children, U.S., regional, and international law provide additional protections for child asylum seekers above the standard of asylum protections for adults. 

The CRC requires state parties to consider the best interests of the child in all actions.[101] The Convention mandates that a minor seeking asylum be afforded “appropriate protection and humanitarian assistance in the enjoyment of applicable rights.”[102] Experts also advise that the child’s best interests be seriously considered as an independent source of international protection during child asylum and removal decisions.[103] 

The Inter-American Court of Human Rights has applied the principle of non-refoulement to children, even when the child has not yet received refugee status but has asserted their intent to apply for asylum, including at the border.[104] The Court stated that the decision on the return of a child to their country of origin or to a third country should always be based on the best interests of the child.[105] According to the Court, states must protect the need of children to grow and develop, and must accordingly offer “the necessary conditions to live and develop their aptitudes taking advantage of their full potential.”[106] Furthermore, states should account for “the specific forms that child persecution may adopt, such as recruitment, trafficking, and female genital mutilation” when adjudicating asylum claims.[107] The procedures for seeking asylum, including permitting asylum-seekers to enter the country at the border, must be executed irrespective of whether or not a child is accompanied by a parent or adult relative.[108]

Regarding child detention, the CRC forbids unlawful or arbitrary imprisonment, and states that “[t]he arrest, detention or imprisonment of a child shall be … used only as a measure of last resort and for the shortest appropriate period of time.”[109] Moreover, the Convention states that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs of a person of his or her age.”[110] Although the United States has not ratified the CRC, and is the only country in the world not to have done so, as a signatory to the treaty, the United States is bound by customary law not to violate the object and purpose of the treaty.

Family unity is a fundamental tenet of refugee law, recognized as an essential right which obliges governments to protect families.[111] The Inter-American Court of Human Rights stressed the importance of the family unit in the context of migration and noted that a child “has the right to life with his or her family.”[112] The concept of family unity was recognized by the U.S. Supreme Court as a fundamental right protected by the due process clause of the Fourteenth Amendment to the Constitution: “The interest of parents in the care, custody, and control of their children.”[113] The right includes the ability to make decisions regarding the upbringing of children, to establish a home, and to control the child’s education.[114] U.S. government actions to separate parents and children in the context of immigration law enforcement in 2018 were halted with an injunction, and the government was required to reunite the separated parents and children, demonstrating the continuing importance of family unity as a guiding norm.[115]

U.S. Laws and Policies Recognize Child Asylum Rights

Indeed, numerous U.S. domestic laws reinforce the universal “best interests” standard which requires enhanced procedural safeguards for children. For instance, statutory bars to apply for asylum[116] (such as the “safe third country” exception or the one-year filing deadline) do not apply to unaccompanied minors.[117]  Thus, children are still entitled to apply for asylum, whereas an adult in the same position would be barred. The United States also offers a specific form of legal status to children who are victims of parental abuse. Special Immigrant Juvenile Status is immigration status granted to a minor (under 21 years of age) in the United States on the basis of abuse, abandonment, or neglect by one or both parents if it is not in their best interest to return to their country of origin.[118]

Unaccompanied children seeking asylum in the United States are entitled by U.S. law to a non-adversarial process with a trained asylum officer, rather than an adversarial process in immigration court.[119] This provision implicitly recognizes that traumatized children fleeing persecution should be heard in an age- and trauma-sensitive process.

The Central American Minors Program allows children to apply from U.S. embassies in El Salvador, Guatemala, and Honduras to gain legal entry to the United States to reunify with their parents living in the United States. Allowing children to apply in their home countries recognizes the vulnerability of children during migration and reduces harm experienced in transit. The program was established in 2014; however, in November 2017, the United States stopped accepting new applications.

U.S. Laws Related to Child Protection for Non-citizen Children

In addition to protections for children in asylum proceedings, U.S. law provides additional protections which regulate how non-citizen children may be treated. The Flores Settlement Agreement (1997)[120] contains requirements for the detention, release, and treatment of minors in government custody, including while awaiting removal or adjudication of asylum claims.[121] The agreement prioritizes the release of children into the custody of an appropriate adult wherever possible[122] and outlines minimum standards for licensed facilities where children may be held.[123] These standards include: proper physical care and maintenance, appropriate medical care, individualized needs assessments, education services, recreation and leisure activities, counseling sessions, access to religious services, visitation, family reunification services, and legal information.[124] Lawyers have protected children in custody by suing on their behalf to enforce the settlement agreement, arguing that the government fails to meet the minimum conditions of detention and that conditions must be improved; such lawsuits represent a recognition of the unique rights of children.[125]

The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) creates the institutional framework to effectively implement a higher standard of protection for children. The TVPRA places responsibility for the care of children in custody with the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement rather than with U.S. Immigration and Customs Enforcement, which has a law enforcement rather than a protective mandate.[126] Showing the urgency of this standard, the TVPRA requires that children be transferred into HHS custody within 72 hours unless “exceptional circumstances” apply.[127] By definition, HHS custody is understood to be a more child-sensitive environment, “the least restrictive setting that is in the best interest of the child.”[128]

Universal customary and treaty norms have established the best interests of the child as the primary standard by which actions involving children must be assessed, and numerous U.S. laws, policies, and legal judgements have confirmed the relevance of that standard in practice, including in relation to non-citizen children.

Conclusion

This study documents significant multi-dimensional, recurrent, and sustained trauma experienced by children seeking asylum in the United States both in their countries of origin, often prompting their flight, and compounded and exacerbated by cruel and inhumane policies after they cross the border. Children reported suffering direct physical violence (78 percent) and sexual violence (18 percent), threats of violence or death (71 percent), and witnessing acts of violence (59 percent). The perpetrators were most often gang members (60 percent), but a significant portion of children (47 percent) faced violence from family members. Children reported a failure of state protection, from direct police brutality against children to deliberate police inaction despite knowledge of crimes against children. Children also reported frightening and dangerous experiences in transit, while crossing the border, and in U.S. immigration detention.

Physicians for Human Rights’ clinicians documented a range of negative physical aftereffects of the abuse that children suffered, from musculoskeletal, pelvic, and dermatologic trauma – including bruising, cuts, bleeding, and acute and chronic pain – to head injuries resulting in concussions and potential neurocognitive damage. The psychological impact of abuse was also significant. In this sample, 76 percent of children were suspected or diagnosed to have at least one major mental health diagnosis, most commonly post-traumatic stress disorder (64 percent), major depressive disorder (40 percent), and anxiety disorder (19 percent).  Children exhibited a broad range of symptoms, such as dissociative reactions, symptoms of flashbacks, nightmares, sad and depressed mood, hopelessness, guilt, anger, and irritability. However, clinicians also documented the children’s reports that their symptom burden decreased significantly after finding physical safety and security in the United States.

In the countries from which children were fleeing, these findings indicate that children need protection from gang violence. Boy children faced threats to join gangs or if they tried to leave the gang, and girl children reported being threatened or forced to have sex with gang members. Children reported that they did not feel safe at school due to gang violence, which indicates a need for improved security in academic settings. Children reported that their parents neglected them and subjected them to child labor, which calls for targeted interventions to support school attendance. Others become homeless to escape domestic abuse; street children are especially vulnerable and need holistic programming to meet their needs. Children in this study did not report that they had access to protection by community policing or restraining orders, homeless shelters or safe houses, school retention programming, or effective post-rape care.

The extreme levels of pervasive violence described by more than 160 children from the Northern Triangle of Central America – El Salvador, Guatemala, and Honduras— must be considered in light of the rising numbers of children and families from those countries seeking asylum from persecution in the United States. The recommendations which follow propose ways to ensure child protective standards and practices at all stages of the migration and asylum process.

Recommendations

Children have the right to be safe from harm, including through provision of enhanced substantive and procedural protections which take into account their level of development and maturity. Policy implications of compound trauma exposure of children should be seriously considered by government authorities in countries of origin, transit, and asylum.

For the U.S. Government:

The Administration, Department of Justice, and Department of Homeland Security

• Given the extreme levels of violence experienced by children in the Northern Triangle   evaluated by Physicians for Human Rights, the administration should:
  • Recognize and address displacement trends driven by human rights abuses by ensuring access to asylum in the United States, maintaining vital aid to Northern Triangle countries to address gang-related violence, corruption, and impunity, and developing new programs which specifically support child protection services in those countries;
  • Ensure capacity to systematically identify children with international protection needs, including through mandatory child welfare protection training and inter-agency screening tools for U.S. Customs and Border Protection (CBP) personnel;
  • Re-establish and expand the Central American Minors parole program so that children can apply for protection from their home countries and avoid the risks in transit to the border;
  • Ensure access to a fair and efficient process for legal subsidiary protection status for children who do not meet the refugee definition but would be at risk of serious harm if returned.
• Since separation from parents has been identified in this study as a vulnerability factor which increases risk of harm, the administration must stop separating families migrating together and reunite all families separated by the U.S. government, until there is a proven risk of harm to the child. The government must not target potential child sponsors for immigration enforcement, in order to ensure timely release of children from federal custody;
• Given the health status of arriving children, which has been affected by repeated trauma exposure, the administration should:
  • Ensure that all children receive adequate pediatric medical screening on arrival to custody with referral for further care to be determined by a qualified medical professional;
  • Ensure that no child is detained for longer than 24 hours in CBP holding cells by transferring children to enhanced reception centers with access to appropriate medical care and other essential services;
  • Abide by minimum standards for care of children in custody;
  • Increase resources for and utilization of alternatives to detention, such as reviving the Family Case Management Program, and prioritize the timely release of children and infants to community settings;
  • Ensure appropriate staffing and oversight for all facilities holding children, including emergency response capacity for influxes;
  • Investigate and ensure accountability for all allegations of abuse against children, through documentation, reporting, and review of all interactions between government officials and children.

U.S. Congress

• Exercise oversight regarding practices which limit access to asylum and uphold U.S. law, which establishes the asylum process for those with a credible fear, regardless of manner of entry,[129] as well as the right to not be returned to likely persecution;[130]
• Allocate appropriate immigration and border enforcement funding for concrete deliverables such as increased inspection capacity at ports of entry, increased capacity for processing asylum claims, improved detention conditions, and scaled up alternatives to detention programming;
• Codify the minimum child protection standards of the Flores Settlement Agreement into law;
• Seek to ratify the United Nations Convention on the Rights of the Child to strengthen the legal framework for child protection, and fully consider the best interests of the child in development of all laws and policies concerning them.

For the Governments of El Salvador, Guatemala, Honduras, and Mexico:

• Ensure adequate resources to investigate, prosecute, and punish violent acts committed by state and non-state actors, while ensuring due process protections for the accused, and establish or maintain independent investigatory bodies to address corruption and impunity;
• Ensure adequate resources for violence prevention measures, such as specialized police units, gender equality education initiatives, and special assistance by courts, the social welfare system, and health care workers;
• Ensure that the rights of children seeking asylum are respected, and the best interests of the child considered in asylum screening, reception of child migrants, and repatriation to home countries.

For Refugee and Migration Bodies, Including United Nations High Commissioner for Refugees, International Organization for Migration, and the Special Rapporteur on the Human Rights of Migrants:

• Monitor immigration and border governance policies and practices of governments to assess their compliance with child rights’ standards and their impact on child migrants and asylum seekers;
• Urge states to end policies that restrict the right to seek asylum and to uphold legal obligations of non-rejection at the frontier;
• Advance gender- and age-sensitive understandings of persecution, including persecution by non-state actors, responding to states who seek to apply a more narrow definition of refugee status with evidence about forms of trauma and persecution commonly affecting children;
• In order to decrease risks to children in transit, facilitate regional migrant protection protocols, increase humanitarian support in transit locations, and urge states to increase capacity to receive asylum seekers and quotas for the refugee resettlement program.

For International Bodies with a Child Rights Mandate, Including the United Nations Committee on the Rights of the Child, UNICEF, and Inter-American Commission on Human Rights Rapporteur on the Rights of the Child:

• Monitor the child rights situation in countries of origin in order to accurately advise countries of origin on methods to improve child protection and also to inform accurate country conditions information related to child asylum claims;
• Advance understanding of the application of a child-rights framework to migration and asylum processes, from standards setting to identification of best practices;
• Continue to urge the United States to ratify the UN Convention on the Rights of the Child.

Acknowledgments

This report was written by faculty and students from Weill Cornell School of Medicine Kevin Ackerman, Weill Cornell Center for Human Rights (WCCHR) case scheduler; Lynne Rosenberg, WCCHR director of organizational operations; Joseph Shin, MD, WCCHR co-medical director, assistant professor of medicine at Weill Cornell Medicine, and attending physician at New York Presbyterian Hospital; and by PHR staff Hajar Habbach MA, program associate; Kathryn Hampton, MSt, network program officer; and Sarah Stoughton JD, legal intern.

The report benefitted from review by PHR staff, including Maryam Al-Khawaja, Europe director; DeDe Dunevant, director of communications; Derek Hodel, interim director of programs; Donna McKay, MS, executive director; Michael Payne, advocacy officer; and Susannah Sirkin, MEd, director of policy.

The report also benefitted from external review by PHR Board Member Lois Whitman, JD MSW.

The report was edited by Claudia Rader, MS, senior communications manager. It was prepared for publication by Claudia Rader and PHR interns Theresa McMackin and Angelica Rossi-Hawkins.

Support for this report was provided by the Harman Family Foundation.

Endnotes

[1] John Kelly, “Transcript: White House Chief Of Staff John Kelly’s Interview With NPR,” NPR.org, last modified May 11, 2018, https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellys-interview-with-npr; Attorney General Jeff Sessions, “Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration,” Speech, May 7, 2018, https://www.justice.gov/opa/speech/ attorney-general-sessions-delivers-remarks-discussing-immigrationenforcement-actions.

[2] Karen Musalo and Eunice Lee, “Seeking a Rational Approach to a Regional Refugee Crisis: Lessons from the Summer 2014 Surge of Central American Women and Children at the US-Mexico Border,” Journal on Migration & Human Security 5 (2017), 137.

[3] See for example: I. Derluyn and E. Broekaert, “Different perspectives on emotional and behavioural problems in unaccompanied refugee children and adolescents,” Ethnicity & Health, 2007;12(2):141-162; Mina Fazel, Ruth V. Reed, Catherine Panter-Brick, and Alan Stein, “Mental Health of Displaced and Refugee Children Resettled in High-income Countries: Risk and Protective Factors,” The Lancet, 379, no. 9812 (2012), 266-82, doi:10.1016/s0140-6736(11)60051-2.

[4] The principle of non-refoulement under international human rights law, Office of the High Commission on Human Rights, accessed at: https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.

[5] “Total Illegal Alien Apprehensions By Month,” United States Border Patrol,  https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-apps-sector-area-fy2018.pdf.

[6] “Total Unaccompanied Alien Children (0-17 Years Old) Apprehensions by Month,” United States Border Patrol (2018), https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-uacs-sector-fy2010-fy2018.pdf.

[7] “Total Family Unit Apprehensions by Month FY2018,” United States Border Patrol, https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-family-units-sector-fy13-fy18.pdf.

[8] “Intentional Homicides (per 100,000 People),” The World Bank (2016), https://data.worldbank.org/indicator/VC.IHR.PSRC.P5. [El Salvador, Honduras, and Guatemala have the highest, 2nd highest, and 10th highest rates, respectively, of intentional homicides per 100,000 people.].

[9] “Children on the Run – Unaccompanied Children Leaving Central America and Mexico and the need for International Protection,” United Nationals High Commissioner for Refugees (13 March 2014).

[10] Annual Flow Report: Refugee and Asylees 2017, Department of Homeland Security Office of Immigration Statistics Office of Strategy, Policy and Plans (March 2019), https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2017.pdf.

[11] Doe v. Nielsen, 3:19-cv-00807, 1, 10 (N.D. Cal. 2019) (Complaint for Declaratory and Injunctive Relief), https://www.aclu.org/sites/default/files/field_document/2019.02.14.0001_compl._for_decl._and_inj._relief.pdf.

[12] “A Timeline: How the Trump Administration is Rolling Back Protections for Children,” KIND (9 October 2018), accessed at: https://supportkind.org/resources/a-timeline-how-the-trump-administration-is-rolling-back-protections-for-children/.

[13] Israel Bronstein and Paul Montgomery, “Psychological distress in refugee children: a systematic review,” Clinical Child and Family Psychology Review 14, no. 1 (2010); Paul L. Geltman et al. “The ‘lost boys of Sudan’: functional and behavioral health of unaccompanied refugee minors resettled in the United States,” Archives of Pediatric and Adolescent Medicine 159, no. 6 (2005); Matthew Hodes, “Psychopathology in refugee and asylum-seeking children,” in Michael Rutter et al. (eds.), Rutter’s Child and Adolescent Psychiatry (Wiley-Blackwell, 2009).

[14]> MS. L v. ICE, Order Granting the Plaintiffs’ Motion for Classwide Preliminary Injunction, Case 3:18-cv-00428-DMS-MDD, accessed at: https://www.aclu.org/legal-document/ms-l-v-ice-order-granting-plaintiffs-motion-classwide-preliminary-injunction.

[15] Ibid.

[16] See PHR report for background on policy developments in U.S. border enforcement: Kathryn Hampton, “Zero Protection: How U.S. Border Enforcement Harms Migrant Safety and Health,” Physicians for Human Rights (January 2019),
https://phr.org/resources/zero-protection-how-u-s-border-enforcement-harms-migrant-safety-and-health/.

[17] “PHR Opposes the Proposed Changes as Announced in DHS Docket NO. ICEB-2018-0002,” Physicians for Human Rights (30 October 2018), https://phr.org/resources/phr-opposes-the-proposed-changes-as-announced-in-dhs-docket-no-iceb-2018-0002/.

[18] Emily Green, “Head of Controversial Tent City Says the Trump Administration Pressured Him to Detain More Young Migrants,” VICE (11 January 2019), accessed at: https://news.vice.com/en_us/article/kzvmg3/head-of-controversial-tent-city-says-the-trump-administration-pressured-him-to-detain-more-young-migrants.

[19] Tal Kopan, “ICE Arrested Undocumented Immigrants Who Came Forward to Take in Undocumented Children,” CNN (20 September 2018), https://www.cnn.com/2018/09/20/politics/ice-arrested-immigrants-sponsor-children/.

[20] Dr. Scott Allen and Dr. Pamela McPherson, Letter to the Senate Whistleblowing Caucus (17 July 2018), accessed at: https://www.whistleblower.org/wp-content/uploads/2019/01/Original-Docs-Letter.pdf.

[21] “U.S. Immigration Policy Contributes to Another Child Death,” Physicians for Human Rights (26 December 2018), accessed at https://phr.org/resources/u-s-immigration-policy-contributes-to-another-child-death/.

[22] Zolan Kanno-Youngs, “Guatemalan Boy Dies at Border Station While Awaiting Move to a Shelter,” New York Times (20 May 2019), accessed at: https://www.nytimes.com/2019/05/20/us/politics/migrant-boy-dies.html; “Adolfo Flores, A 2-Year-Old Boy Detained At The Border Has Died After Weeks In The Hospital,” Buzzfeed (21 May 2019), accessed at: https://www.buzzfeednews.com/article/adolfoflores/toddler-dies-immigrant-border-us-texas-guatemala.

[23] American Immigration Council, American Immigration Lawyers Association (AILA) Complaint Urges Immediate Release of Infants from Immigration Detention (8 February 2019), accessed at: http://americanimmigrationcouncil.org/advocacy/infants-immigration-detention.

[24] “Fact Sheet Alternatives to Detention,” Physicians for Human Rights (October 2018), accessed at: https://s3.amazonaws.com/PHR_other/factsheets/PHR_Asylum_Fact_Sheet_Alternatives_to_Detention.pdf.

[25] Jane C. Timm, “This Obama-era pilot program kept asylum-seeking migrant families together. Trump canceled it.,” NBC News (24 June 2018), accessed at: https://www.nbcnews.com/storyline/immigration-border-crisis/obama-era-pilot-program-kept-asylum-seeking-migrant-families-together-n885896.

[26] See above section, Rising Numbers of Children and Families Seek Asylum in the U.S.

[27] “Metering Update: February 2019,” Robert Strauss Center at the University of Texas at Austin, the Center for U.S-Mexican Studies (USMEX) at the University of California San Diego, and the Migration Policy Centre, accessed at: https://www.strausscenter.org/images/strauss/18-19/MSI/MSI_MeteringUpdate_190213.pdf; “Barred at the Border: Wait “Lists” Leave Asylum Seekers in Peril at Texas Ports of Entry,” Human Rights First (April 2019), accessed at: https://www.humanrightsfirst.org/sites/default/files/BARRED_AT_THE_BORDER.pdf.

[28] “A Sordid Scheme: The Trump Administration’s Illegal Return of Asylum Seekers to Mexico,” Human Rights First (March 2019), accessed at: https://www.humanrightsfirst.org/sites/default/files/A_Sordid_Scheme.pdf.

[29] Jennifer Podkul, “The Protection Gauntlet: How the United States is Blocking Access to Asylum Seekers and Endangering the Lives of Children at the U.S. Border,” KIND (21 December 2018), accessed at: https://supportkind.org/resources/the-protection-gauntlet-how-the-united-states-is-blocking-access-to-asylum-seekers-and-endangering-the-lives-of-children-at-the-u-s-border/; “Barred at the Border,” Human Rights First.

[30] “Children on the Run,” UNHCR.

[31] See Legal Framework section of this report, Protections Under Asylum and Refugee Law.

[32] Matter of AB-, 27 I&N Dec. 227 (AG 2018).

[33] “Practice Advisory: Grace v. Whitaker,” American Civil Liberties Union, Center for Gender and Refugee Studies 1, (7 March 2019), https://www.aclu.org/sites/default/files/field_document/grace_practice_advisory_combined.pdf; An appeal filed by the government in January of 2019 is pending.

[34] PHR’s Asylum Network accepts applications from physicians, psychologists and mid-level medical and mental health providers such as licensed clinical social workers and nurse practitioners. To join the PHR Asylum Network, clinicians must complete a full-day training which covers asylum law, international standards for documenting physical and psychological evidence of torture and other human rights abuses, and effective medical-legal documentation.

[35] UN Office of the High Commissioner for Human Rights (OHCHR), Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”) (2004), HR/P/PT/8/Rev.1.

[36] Requests to PHR for evaluations in which the client is not seeking a form of humanitarian relief are not accepted. For accepted requests, PHR staff conduct outreach to its network of volunteer health professionals. Each forensic evaluation is conducted in a private location, many with the assistance of professional interpreters and medical student scribes. Consent is always obtained from the clients prior to the evaluation with the guidance of their legal representatives, who are required to fulfill their fiduciary duty to their client, and often act in concert with guardians or surrogates, if available.

[37] Juveniles — Immigration Court Deportation Proceedings, Transactional Records Access Clearing House (March 2019), accessed at: https://trac.syr.edu/phptools/immigration/juvenile/.

[38] Out of the evaluations, the border crossing experience was not mentioned in 92 of the cases. In the remaining 88 cases, 61 children crossed the border unaccompanied, while 27 children crossed the border with a parent or an adult who by law or custom has responsibility to do so, such as a grandparent, aunt/uncle or older sibling.

[39] “Complex Trauma”, The National Child Traumatic Stress Network, accessed at: https://www.nctsn.org/what-is-child-trauma/trauma-types/complex-trauma; see also John McAloon, “Complex trauma: how abuse and neglect can have life-long effects,” The Conversation (October 2014), accessed at: https://theconversation.com/complex-trauma-how-abuse-and-neglect-can-have-life-long-effects-32329.

[40] Vincent J. Felitti et al., “Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study,” American Journal of Preventive

Medicine, 14, no. 4 (1998).

[41] Kitzmann et. al., “Child Witness to Domestic Violence: A Meta-Analytic Review,” Journal of Consulting and Clinical Psychology, 71.2 (2003); HM Zinzow, KJ Ruggiero, RF Hanson, DW Smith, BE Saunders, and DG Kilpatrick, “Witnessed community and parental violence in relation to substance use and delinquency in a national sample of adolescents,” J Trauma Stress (2009);22(6):525–533. doi:10.1002/jts.20469.

[42] 48 children reported both parents in the US, 82 children reported one parent in the US and 21 children reported parental death. There is some overlap within these categories as some children may have one parent in the United States and one deceased.

[43] UN General Assembly, “International Covenant on Civil and Political Rights” (16 December 1966), United Nations, Treaty Series, vol. 999, p. 171, Article 2(1) and Article 26.

[44] Ibid, Articles 6, 7, 9 and 10.

[45] Ibid, Article 23(1).

[46] Ibid, Article 24.

[47] “The Rights of the Child in the Inter-American Human Rights System, Second Edition,” Inter-American Commission on Human Rights, Adopted October 2008, Para. 22, http://www.cidh.org/countryrep/Infancia2eng/Infancia2Cap1.eng.htm, citing “American Convention on Human Rights,” Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.

[48] Ibid. at para. 49.

[49] Ibid. at para. 43.

[50] Ibid. at para. 44.

[51] I/A Court H.R., Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17.

[52] I/A Court H.R., The “Street Children” Case (Villagrán Morales et al.), Judgment of November 19, 1999. Series C No. 63, para. 188.

[53] I/A Court H. R., Case of Bulacio, Judgment of September 18, 2003, Series C No. 100, para. 133.

[54] Case of the Yean and Bosico Children v. The Dominican Republic, Inter-American Court of Human Rights (IACrtHR), 8 September 2005.

[55] I/A Court H. R., Case of the “Juvenile Reeducation Institute,” Judgment of September 2, 2004, Series C No. 112.

[56] “Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, (Convention of Belém do Pará),” adopted June 9, 1994, Organization of American States, Arts. 1-2, https://www.oas.org/en/mesecvi/docs/BelemDoPara-ENGLISH.pdf.

[57] Ibid. at Art. 2(a)-(b).

[58] “Convention of Belém do Pará, Status of Signatures and Ratifications,” Organization of American States, accessed May 1, 2019, https://www.oas.org/en/mesecvi/docs/Signatories-Table-EN.pdf.

[59] “Country Reports on Human Rights Practices for 2018: Guatemala,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289300; “Country Reports on Human Rights Practices for 2018: El Salvador,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289296;
“Country Reports on Human Rights Practices for 2018: Honduras,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289306; “Country Reports on Human Rights Practices for 2018: Mexico,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289310.

[60] “Country Reports: Guatemala” United States Department of State, 18.

[61] “Country Reports: Honduras,” United States Department of State, 17; “Country Reports: El Salvador,” United States Department of State, 16.

[62] “Country Reports: El Salvador,” United States Department of State, 16; “Country Reports: Honduras,” United States Department of State, 17.

[63] “Country Reports: Mexico,” United States Department of State, 24.

[64] Ibid.; “Country Reports: El Salvador,” United States Department of State, 18; “Country Reports: Mexico,” United States Department of State, 26.

[65] “Country Reports: Honduras,” United States Department of State, 19.

[66] Ibid.; “Country Reports: El Salvador,” United States Department of State, 18; “Country Reports: Mexico,” United States Department of State, 26.

[67] Ibid; “Country Reports: Guatemala” United States Department of State, 16.

[68] “Mafia of the Poor: Gang Violence and Extortion in Central America,” International Crisis Group, Report 62, Latin America and Caribbean (April 2017), accessed at: https://www.crisisgroup.org/latin-america-caribbean/central-america/62-mafia-poor-gang-violence-and-extortion-central-america; “El Salvador’s Politics of Perpetual Violence,” International Crisis Group, Report 64, Latin America and Caribbean (December 2017), accessed at: https://www.crisisgroup.org/latin-america-caribbean/central-america/el-salvador/64-el-salvadors-politics-perpetual-violence/.

[69] Rachel Dotson and Lisa Frydman, “Neither Security Nor Justice: Sexual and Gender-Based Violence and Gang Violence in El Salvador, Honduras and Guatemala,” KIND (May 2017).

[70] “Saving Guatemala’s Fight Against Crime and Impunity,” International Crisis Group, Report 70, Latin America and Caribbean (October 2018), accessed at: https://www.crisisgroup.org/latin-america-caribbean/central-america/guatemala/70-saving-guatemalas-fight-against-crime-and-impunity.

[71] Velásquez Rodríguez Case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), Inter-American Court of Human Rights (IACrtHR), (29 July 1988).

[72] See Velásquez Rodríguez Case; UN Committee on the Elimination of Discrimination Against Women (CEDAW), Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico (27 January 2005), CEDAW/C/2005/OP.8/MEXICO.

[73] I/A Court H.R., The “Street Children” Case (Villagrán Morales et al.), Judgment of November 19, 1999, Series C No. 63, para. 188, para 196.

[74] Maria da Penha Law, Law No. 11.340, August 7, 2006, Art. 6, [translated at p. 10], https://learningpartnership.org/sites/default/files/resources/pdfs/Brazil-Maria-Da-Penha-Law-2006-English_0.pdf.

[75] Ibid. at Art. 8(IV).

[76] Ibid. at Art. 8 (VIII)-(IX).

[77] Ibid. at Arts. 9-12.

[78] 1951 Geneva Convention Relating to the Status of Refugees, Article 33 (1).

[79] See e.g. MSS v. Belgium and Greece, 30696/09, European Court of Human Rights, 1, 12 (2011) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-103050%22]}; Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19, 2014, 1, 83, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf.

[80] Geneva Convention Art. 33 (1).

[81] MSS v. Belgium and Greece, ECtHR 2011, at 12, citing UNHCR Note on International Protection of 13 September 2001 (A/AC.96/951, para. 16).

[82] UN General Assembly, Declaration on Territorial Asylum (14 December 1967), A/RES/2312(XXII); UN High Commissioner for Refugees (UNHCR), Conclusion on International Protection No. 85 (XLIX) – 1998, 9 October 1998, No. 85 (XLIX) – 1998; UN High Commissioner for Refugees (UNHCR), General Conclusion on International Protection No. 99 (LV) – 2004, 8 October 2004, No. 99 (LV) – 2004.

[83] International Covenant on Civil and Political Rights, Article 13.

[84] UN General Assembly, Office of the United Nations High Commissioner for Refugees : resolution / adopted by the General Assembly, 24 February 1995, A/RES/49/169.

[85] “Cartagena Declaration on Refugees,” Adopted 19-22 November 1984 by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, United Nations High Commissioner on Refugees, Art. III (3),https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.

[86] Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19, 2014, 31, Footnote 20, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf.

[87] UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (December 2011), HCR/1P/4/ENG/REV. 3.

[88] Canada (Attorney General) v Ward (1993), Regina v. Secretary of State For the Home Department, Ex Parte Adan (UKHL, 1998).

[89] In re Fauziya Kasinga, 21 I&N Dec. 357 (BIA 1996), Matter of Villalta, 20 I&N Dec. 142 (BIA 1990), Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985), citing Mc.Mullen v. INS, 658 F.2d 1312,1315 n.2 (9^th Cir. 1981); Rosa v. INS, 440 F.2d 100, 102 (1^st Cir. 1971); Matter of McMullen, 17 I&N Dec. 542, 544-45 (BIA 1980); Matter of Pierre, 15 I&N Dec. 461, 462 (BIA 1975).

[90] UN High Commissioner for Refugees (UNHCR), Guidance Note on Refugee Claims Relating to Victims of Organized Gangs (31 March 2010), paras 12-17.

[91] Ibid para 28.

[92] Ibid para 31.

[93] Matter of S-E-G-, et al., 24 I&N Dec. 579 (BIA 2008), United States Board of Immigration Appeals (30 July 2008).

[94] Human Rights Committee general comment No. 28 (2000) on article 3 (The equality of rights between men and women), para. 11.

[95] Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014), Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008); Matter of SA-, 22 I. & N. Dec (BIA 2000); Minister for Immigration and Multicultural Affairs (MIMA) v Khawar (2002), Islam (A.P.) v. Sec’y of State for the Home Dep’t, and Regina v. Immig. App. Tribunal & Another, Ex Parte Shah (A.P.), [1999] UKHL 20, [1999] 2 A.C. 629 (H.L.).

[96] Brief for Respondents as Amicus Curiae, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).

[97] Grace v. Whitaker, No. 18-cv-01853 (EGS) (D.D.C. Dec. 17, 2018).

[98] Rosalba Aguirre-Cervantes a.k.a. Maria Esperanza Castillo v. Immigration and Naturalization Service, U.S. Court of Appeals for the 9th Circuit, (21 March 2001).

[99] UN High Commissioner for Refugees (UNHCR), Conclusion on Children at Risk No. 107 (LVIII) – 2007, 5 October 2007, No. 107 (LVIII) – 2007.

[100] UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, HCR/GIP/09/08.

[101] “Convention on the Rights of the Child,” opened for signature 20 November 1989, United Nations G.A. Res. 44/25, Art. 3(1), https://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf.

[102] Ibid. at Art. 22(1).

[103] Jason M. Pobjoy, “The best interests of the child principle as an independent source of protection,” International Comparative Law Quarterly (2015), 64(2), 327.

[104] Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19, 2014, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf, at 79-95.

[105] Ibid. at 94-95.

[106] Ibid. at 24 [internal citations omitted].

[107] Ibid. at 32-33.

[108] Ibid. at 32-33, 34.

[109] Ibid. at Art. 37(b).

[110] Ibid. at Art. 37(c).

[111] General Assembly of the United Nations, Resolution 429 (V) of 14 December 1950.

[112] Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19, 2014, 60, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf, citing Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02 of August 28, 2002, para. 71; Case of Fornerón and Daughter v. Argentina, Merits Reparations and Costs, Judgement of April 27, 2012, para. 46.

[113] Troxel v. Granville, 530 U.S. 57, 65 (2000). See also Parham v. J.R., 442 U.S. 584, 602 (1979) [“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.”].

[114] Ibid. at 65-66 [internal citations omitted].

[115] Ms. L v. U.S. Immigration and Customs Enforcement, Case 3:18-cv-00428-DMS-MDD, Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, (S.D. Cal. 2018), https://www.aclu.org/sites/default/files/field_document/83_order_granting_pi.pdf.

[116] INA § 208(a)(1) / 8 U.S.C. § 1158(a)(1).

[117] Ibid. at (a)(2)(E), referencing exceptions in (2)(A)-(B); Unaccompanied Alien Child (UAC) is defined in the relevant statues as: “a child who: (A) Has no lawful immigration status in the United States; (B) Has not attained eighteen (18) years of age; and (C) With respect to whom: (i) There is no parent or legal guardian in the United States; or (ii) No parent or legal guardian in the United States is available to provide care and physical custody.” “Homeland Security Act,” 6 U.S.C. 279(g)(2); “William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,” HR 7311, 110^th Congress, 2^nd Session, January 1, 2008 at § 235(g), https://www.state.gov/j/tip/laws/113178.htm.  [Hereinafter cited as TVPRA.].

[118] INA 101(a)(27)(J) / 8 USC 1101(a)(27)(J); For more information, see “Special Immigrant Juveniles,” U.S. Citizenship and Immigration Services, Last Updated April 10, 2018, https://www.uscis.gov/green-card/sij.

[119] The INA in 8 USC 1158(b)(3)(C) specifies that an asylum officer has initial jurisdiction over claims by unaccompanied minors and asylum officers must conduct interviews in a non-adversarial manner (8 CFR 208.30(d)). [“An asylum officer…shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 279(g) of title 6), regardless of whether filed in accordance with this section or section 1225(b) of this title]: 8 USC 1225(b) [addressing the processing of arriving noncitizens who have not been admitted or paroled into the United States.]

[120] The government and lawyers for the plaintiffs in the case, Flores v. Reno, reached an agreement after years of litigation.  The agreement outlines conditions that must be met for holding children in immigration detention.  Flores v. Reno, Settlement Agreement, CV 85-4555-RJK (C.D. Cal.), https://www.aila.org/File/Related/14111359b.pdf.

[121] Ibid. at para. 9.

[122] Ibid. at para. 14.

[123] Ibid. at Exhibit 1.

[124] Ibid.

[125] See e.g. Flores v. Sessions III, 2:85-cv-04544-DMG-AGR, (C.D. Cal. 2018), Order re Plaintiffs’ Motion to Enforce Class Action Settlement, https://www.aila.org/File/Related/14111359ae.pdf.

[126] For UAC to be returned to Mexico or Canada, the criteria enumerated in TVPRA § 235(a)(2)(A) – (B) must be met.

[127] Ibid at § 235(b)(3).

[128] Ibid. at § 235(c)(2).

[129] INA § 208(a)-(b).

[130] INA § 241(b)(3).

The Trump administration’s move on May 24 to authorize emergency arms sales to Saudi Arabia, the United Arab Emirates, and Jordan is bad news for the already grievously suffering population of Yemen. The administration justifies those arms – including bombs, precision-guided munitions, drones, and repair and maintenance services for the Saudi air fleet – as necessary to counter Iran’s regional “malign influence.” But it’s much more likely that they will be deployed in the Yemen conflict in ways that pose a deadly danger to Yemeni civilians.

A New York Times exposé last week shone a light on that aspect of the Yemeni war, one that Saudi Arabia and the Trump administration would likely prefer we ignore: lethal airstrikes on hospitals and other health care facilities by the Saudi-Emirati-led coalition, using U.S. military armaments and ordnance and supported by U.S. training and intelligence. That report highlighted an almost casual commission of war crimes – attacks on medical facilities despite vivid markings on hospital roofs identifying their medical purpose and the existence of a “no strike list,” which is an index of permanently deconflicted humanitarian sites managed by the UN Office for the Coordination of Humanitarian Affairs. This list supposedly prohibits attacks on known medical facilities by parties to the conflict.

The New York Times report is dismaying, but not surprising.

Physicians for Human Rights (PHR) has been monitoring and verifying the targeting of health care facilities and the failure to take appropriate measures to shield them from attacks during the past 16 months by both the Saudi-Emirati-led coalition and the insurgent Houthis. In that period, PHR has independently confirmed more than 23 individual attacks on health facilities. Hospitals and clinics have been bombarded, shelled, overrun, and put out of service. These attacks include Saudi-Emirati-led coalition air strikes that destroyed a clearly demarcated Doctors Without Borders clinic in the town of Abs on June 11, 2018 as well as an October 11, 2018 airstrike that severely damaged a hospital in ad-Durayhimi.

The aerial bombardment of medical facilities by the Saudi coalition is causing significant long-term damage to Yemen’s fragile health infrastructure. Meanwhile, indiscriminate land bombardments, the occupation of medical facilities, the restriction of access to medical aid and supplies, and multiple incidents of assaults on medical personnel have all caused medical facilities to become unsafe. About 50 percent of hospitals and health facilities in Yemen continue to be out of service or functioning partially. Health care remains largely inaccessible, with many civilians having to travel long and often dangerous distances to access basic medical services.

The human cost of these attacks is unconscionable. In the context of an extremely vulnerable population and a health care system already reeling under the weight of the conflict, the consequences of such purposeful attacks on public health cannot be overstated. These attacks have coincided with multiple cholera outbreaks that have affected an estimated 1.16 million Yemenis. Despite cholera being a treatable disease, thousands of people have already succumbed to the illness, nearly a third of whom were children.

PHR has repeatedly called for a concerted international effort to halt attacks on civilians, has urged countries providing arms to the belligerents to make every effort to ensure that these are not used against civilians and civilian infrastructure, and has pushed for independent investigations into gross violations of international humanitarian law and human rights. However, as the conflict has deepened and the resultant humanitarian disaster expanded, such calls by PHR and others have increasingly rung hollow, especially with those Western governments largely supportive of the Saudi-Emirati-led coalition. Despite the public outcry over the actions of coalition members and the political momentum to counter these actions that built up in the wake of the October 2018 Khashoggi murder – including a bipartisan vote by Congress to end U.S. involvement in Yemen – the Saudi-Emirati-led coalition continues to prosecute the war in Yemen in complete disregard of its obligations to prevent harm to civilians.

The Trump administration has unapologetically supported the Saudi involvement in Yemen despite the staggering human toll it has inflicted on that country’s civilian population. By announcing its plan to bypass Congress with an “emergency” provision to the Arms Export Control Act, the administration has opted for a legally dubious measure to circumvent the constitutional authority of a bipartisan Congress which stands in opposition to such sales. The weapons sold by the United States government to members of the coalition help perpetuate the conflict and the unlawful attacks on civilians and health facilities that define it. The Trump administration should prioritize the lives of Yemeni civilians over blind support for perceived regional allies who are shredding international norms by pursuing a conflict in Yemen that is characterized by a grisly litany of war crimes. Suspending armament sales to Saudi Arabia, the Emirates, and their allies will send an overdue message that the Trump administration will no longer be complicit in the criminality of the Yemen conflict. Failure to do so will relegate the United States to the status of an enabler of the ongoing depredation of Yemen and the death of thousands of its civilians.

Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.

Where in the world do military personnel convicted for their role in the cold-blooded killings of civilians serve a lighter prison sentence than the journalists who exposed that atrocity?

Welcome to “justice,” Myanmar-style.

On May 27, Myanmar prison sources confirmed that the seven soldiers convicted in April 2018 of killing 10 Rohingya men and boys in the infamous Inn Din village massacre of September 2017 “are no longer detained.” Those sources stated that the seven personnel, who included four officers, had been released in November 2018, a mere seven months into their 10-year prison terms. A senior Myanmar government official said the killers’ release was a result of the fact that “their punishment was reduced by the military.”

This Tuesday, Brigadier-General Zaw Min Tun told The Irrawaddy online news platform that military commander-in-chief Senior General Min Aung Hlaing had pardoned the seven soldiers.

Perversely, the two journalists who exposed the massacre, Wa Lone and Kyaw Soe Oo, were imprisoned for 16 months in apparent direct retaliation for their reporting of the killings. Myanmar authorities arrested the two reporters in December 2017 on alleged violations of the draconian Official Secrets Act. They released the two men this month as part of a wider presidential amnesty following an intense, high-profile campaign for their freedom by foreign governments, human-rights organizations, and their employer, the Reuters international newswire service.

The pardoning of the seven convicted military killers highlights the culture of impunity that continues to define the Myanmar military, known as the Tatmadaw. Those convictions had been the sole official disciplinary action taken against security forces that participated in a brutal campaign of widespread and systematictargeting of Rohingya communities in Rakhine state that killed more than 10,000 Rohingya civilians and prompted more than 740,000 others to flee for safety in Bangladesh.

The violence inflicted on the 10 men and boys massacred in Inn Din village reflects the savagery of the military campaign launched against unarmed Rohingya civilians in Rakhine state in 2017. Witnesses said local Buddhist villagers surrendered the 10 victims, who included an Islamic teacher, high-school students, and farmers, to military personnel who accused the group of being “terrorists.” The 10 were forced to dig their own shallow grave after which they were hacked with swords and then shot.

That atrocity mirrored the vicious intensity of state-sanctioned violence targeted at Rohingya communities in 2017. The results of investigations by Physicians for Human Rights (PHR) over the past 18 months, including a quantitative survey conducted by PHR of 604 surviving Rohingya community leaders in Bangladesh published in March in The Lancet Planetary Health, paints a grim picture of Myanmar security forces deployed in August 2017 to kill and terrorize northern Rakhine’s Rohingya population.

Most respondents identified the Tatmadaw and the official Border Guard Police as the security forces who deployed “military assets, including helicopters, military trucks, and tanks” against defenseless Rohingya men, women and children in August 2017.

Next month, PHR will release a report documenting the legacy of that violence among many of its survivors in Bangladesh’s Rohingya refugee camps in the form of severe long-term disabilities. Meanwhile, back in Rakhine state, the killings continue. An Amnesty International report released this week details how the Myanmar military in Rakhine has continued to engage “in a pattern of unlawful attacks killing and injuring civilians, arbitrary arrests, torture, enforced disappearances, extrajudicial executions, looting, and forced labor.”

That ongoing bloodshed compounded by the government’s and military’s abject refusal to provide even a veneer of accountability for the slaughter of 2017 underscores the necessity of international accountability mechanisms to bring to justice the architects of that violence. That puts the onus on United Nations member states to redouble their efforts to act on independent UN recommendations to refer the country to the International Criminal Court.

These desperately needed accountability efforts have been hamstrung by China and Russia, which continue to oppose the UN Independent International Fact-Finding Mission on Myanmar mandated to investigate reports of the atrocities being committed in the country. The Fact-Finding Mission’s other proposals, including an ad hoc international tribunal to prosecute the Myanmar government and security force officials implicated in the agonies inflicted on the Rohingya, also demand serious scrutiny in the face of Myanmar’s intransigence.

And that’s not all. UN member states that are party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) and which have already recognized the crimes against the Rohingya as genocide – including Malaysia and Canada – should file complaints to the International Court of Justice for the Myanmar government’s violation of the Genocide Convention and press the ICJ to seek reparations for the Rohingya survivors of that violence.

The Myanmar authorities with Rohingya blood on their hands are gambling that the international community can’t muster the needed political will to bring meaningful accountability for their crimes. For those murdered at Inn Din village and the thousands of other Rohingya killed in that scorched-earth campaign, the international community needs to prove Myanmar wrong.

Originally published in Asia Times on 5/30/2019