VA Denies Healthcare to Some Overseas Veterans

By: Christina Ralph

Journal of Global Rights and Organizations Senior Articles Editor & Veterans Legal Clinic Student Attorney

In 2022, there were 171,736 United States military service members permanently stationed overseas. While these service members are representing the U.S. across the globe, they are making connections to people and places, that will last a lifetime. It is unsurprising then that most will travel abroad at some point after they finish their service, and some will make another country their temporary or permanent home. What many of the people serving our country do not know is that while they earn healthcare benefits through their service, once they are veterans should they experience a non-service related emergency while outside of the U.S., the U.S Department of Veterans Affairs (VA) will not cover the cost of their care. 

VA denies basic healthcare and even emergency care to Veterans who travel or live abroad
if their medical issue is deemed not service-connected | Photo Courtesy of Getty Images

Whether a veteran lives overseas or is just traveling outside of the US, the VA denies them reimbursement for emergency services determined not connected to their service. This includes veterans who are 100% disabled.  Thus, veterans are not provided the emergency care to which they are entitled, and which would be completely covered by the VA if their medical emergency had occurred in the US. The reimbursement process causes Veterans to wait “long periods of time and endure great financial hardships” waiting to find out whether they will be reimbursed by the VA for the cost of their emergency care. Denial of reimbursement often forces veterans to choose between their physical health and their financial well-being. 

American service members are sent all over the world as part of their service to our country. These overseas assignments are the catalyst for veterans who travel abroad and especially for those who become expatriates.  There are many reasons veterans choose to live abroad. Most common is that many, such as Ken in Germany, meet their spouses while on assignment in another country. Ken and his wife raised their daughter in Germany where he worked 21 years for the Army and Air Force Exchange Service. Despite living in Germany, Ken remains a “strongly patriotic” American citizen.  He is active in the local VFW and is the Commanding Officer of the 1982 American Legion.  While he used to travel back to the U.S. often, traveling to access VA healthcare is not a viable option for him. Now widowed, Ken resides with his daughter and his grandchildren in Germany. Ken continues to help other veterans navigate the VA claims process, even while he struggles to get the VA services he needs. 

Another reason veterans live outside the US is that they can live a better quality of life, funded by their VA retirement or disability payments, in countries where the cost of living is significantly less than it is in the U.S. Donny in the Dominican Republic, retired from the U.S. Air Force. Rather than seek work to supplement his military pension, he and his wife chose to move near her family in the Dominican Republic where the cost of living has allowed them to fully retire and have the “lifestyle they want right away”. Donny and his wife currently travel to the U.S. for their healthcare. Donny has not had an emergency in the Dominican Republic, but if he does, he plans to seek care at a private hospital, then undertake the long process of seeking reimbursement from the VA.  

As you might imagine, given that they chose to serve in the US military, these veterans are staunchly patriotic. They remain US citizens, pay US taxes, vote in US elections, and stay abreast of issues affecting the US. As Ken, in Thailand says, “An American is an American, no matter in what country he/she resides”. Regardless of the reasons for deciding to live abroad, these veterans have earned their VA healthcare benefits, but are being denied them, simply because they do not live in the U.S.

Neither the Department of Defense nor the VA tracks the number or location of veterans who live abroad. Some estimate approximately 77,058 veterans live abroad. The estimate of disabled veterans living abroad is 28,000.   These veterans are denied non-service related emergency and basic healthcare merely because they live abroad, leaving many feeling forgotten and abandoned by the very agencies that are tasked with honoring their service by providing the benefits they have earned. This was especially true during the Covid pandemic when the VA refused to provide vaccinations, tests, or care for Veterans who were not in the US. Jesse in Mexico, suffers from service-connected sleep apnea, but could not get a Covid vaccine. In his opinion, veterans living abroad were “completely left behind”. Despite begging the VA for help, Jesse and others like him were denied assistance. According to Jesse, it is because expatriate veterans “are obviously not very high on the secretary’s list of priorities.”  It is hard to argue with his logic given that reimbursing veterans for the cost of emergency care is at the discretion of the VA secretary, but the VA still chooses to outright deny veterans coverage for non-military related emergency care outside the US. 

Representative Dingell of Michigan declared, “no veteran should ever have to worry about whether they can afford costly medical expenses, especially when it comes to an emergency,” when, in 2021, legislation was passed requiring the VA to reimburse veterans for emergency health care claims. However, the VA has interpreted the legislation to exclude emergencies experience by veterans outside the U.S., despite the provision having no such limiting language. So, veterans traveling or living abroad are still being denied emergency services when their medical issue is deemed not service-related, requiring veterans to pay for these emergency services out of pocket.  The government has been discussing the issue of healthcare benefits for veterans who travel or live abroad since at least 1962, but the problem persists.  

Even though the well-being, and even the lives, of tens of thousands of veterans, are affected by the lack of basic healthcare and medical emergency coverage they have earned through their service the VA claims it cannot act, and neither Congress, nor the courts, seem willing to act on what they claim is a complicated issue. But veterans around the world do not see it that way. As Ken in Thailand says it is simply “shameful at best; cruel and deceitful at worst” that the VA makes a veteran’s location a condition of receiving healthcare benefits. 

For more information, please see:

Blumenthal & Dingell Introduce Legislation Requiring VA to Reimburse Veterans for Emergency Health Care Claims – 10 Aug. 2021

Court Rules that VA Must Reimburse Veterans for Emergency Care at non-VA Facilities – 3 Nov. 2022

Disabled American Vets Living Overseas Are Getting Screwed Out of Healthcare – 12 May 2018

Expat Retiree Profile: Retiring in the Dominican Republic – 26 Apr. 2023

Medical Care for Veterans Outside the U.S. – 7 Aug. 2022

The Civilian Lives of US Veterans: Issues and Identities – 2016

USA Facts – What Is the State of the Military and How Are US Veterans Faring?

Van Dermark v. McDonough, 57 F.4th 1374 (Fed. Cir. 2023)Vets Living Abroad Left to Navigate Pandemic Problems Without VA Help – 9 Dec. 2020

IACHR Hears First Case on El Salvador’s Total Abortion Ban

Alexa Connaughton
Impunity Watch News Staff Writer

SAN JOSE, Costa Rica – The Inter-American Court of Human Rights has heard its first case regarding the total criminalization of abortion and is expected to deliver a formal written opinion before the end of the year. The case, Beatriz, et al. v. El Salvador, was recommended to the Court by the Inter-American Commission of Human Rights alleging violations of Beatriz’s rights to life and health, to be free from inhumane treatment, to privacy, and to equity before the law. The Court’s decision on this case is expected to set a precedent on abortion laws in Latin America if the woman’s life is in danger or if the fetus will not survive outside the womb.

 

Protesters placing candles at a memorial for Beatriz. Photo Courtesy of NBC News.

In 2013, eleven weeks into her pregnancy Beatriz was diagnosed with a high-risk pregnancy. Beatriz suffered from lupus and other ailments and was diagnosed shortly after her first pregnancy. An ultrasound revealed that the fetus was anencephalic, a lethal condition in which part of the brain and skull don’t develop inside the womb. Carrying this type of pregnancy to term can lead to many complications including obstetrical hemorrhaging. The medical committee at El Salvador’s national maternity hospital recommended an abortion, however, abortion is illegal in all circumstances in El Salvador. Beatriz’s legal team requested the termination of her pregnancy to save her life, but the Supreme court denied the writ, ruling she could not have an abortion. Beatriz later went into labor early and was required to have an emergency C-section, the fetus died only five hours later.

In El Salvador women have been convicted of homicide for having an abortion, with sentences ranging up to 40 years in prison. Doctors, nurses, and other medical professionals can be convicted if they are found to have supported a woman in getting an abortion and may receive up to 12 years in prison.

In 2021 the Inter American Court of Human Rights found El Salvador responsible for the death of Manuela, a woman who was sentenced to 30 years in prison, charged with aggravated homicide after suffering a miscarriage. As part of the Court’s decision on that case they ruled that criminal sanctions should not be imposed automatically when pregnancy ends as a result of an obstetric emergency. However, El Salvador has made no change to their criminal abortion laws following the 2021 ruling. The hope with the pending decision in Beatriz, et al. v. El Salvador, is that a decision condemning the blanket abortion ban as a whole or in circumstances of high risk will push legislation towards decriminalization.

For further information, please see:

Human Rights Watch – El Salvador: Court Hears Case on Total Abortion Ban – 23 Mar. 2023

IACHR – Caso Beatriz y Otros vs. El Salvador – 21 Feb. 2023

Inter-American Commission on Human Rights, OAS – IACHR Takes Case Involving El Salvador’s Absolute Ban on Abortion to the Inter-American Court of Human Rights – 11 Jan. 2022

Jurist – Inter-American Court of Human Rights hears El Salvador abortion access case – 23 Mar. 2023

NBC News – Activists urge human rights court to condemn El Salvador’s abortion ban – 7 Mar. 2023

Reuters – Human rights court begins review of high-stakes El Salvador abortion case – 22 Mar. 2023

The Guardian – ‘Historic moment’ as El Salvador abortion case fuels hopes for expanded access across Latin America – 24 Mar. 2023

ICC – Defense Responds to Prosecution’s Request for In Absentia Confirmation of Charges in Kony Case

By: Nikolaus Merz
Impunity Watch News Staff Writer

THE HAGUE, Netherlands – Following a procedural stay, the Office of Public Counsel for the Defense (“OPCD”) has submitted its response to the Prosecution’s request to hold an in absentia confirmation of charges hearing in the case against Joseph Kony.

Joseph Kony faces 12 counts of Crimes Against Humanity, and 21 counts of War Crimes. If convicted, Mr. Kony’s case would be among the longest in international criminal history. Photo courtesy of Reuters.

The Prosecution’s unprecedented request was filed in November of 2022, and would seek to expand the scope of the International Criminal Court’s (“ICC”) procedural authority.

The Prosecution justified it’s request due to the extraordinary circumstances of Mr. Kony’s case. First, despite concerted efforts of multiple nations, including the deployment of armed forces and money rewards, Mr. Kony’s whereabouts have yet to be discerned. Second, Mr. Kony has remained at large for almost two decades, making him the second longest suspect at large of any international criminal court or tribunal. Third, the Prosecution points out the myriad of policy and judicial interests that would be advanced, including rights of victims, the galvanization of justice, and applicability to similar future circumstances.

The OPCD has responded to the Prosecution’s request with a broadside attack, raising numerous defenses against each of the Prosecution’s arguments. In general however, the OPCD raised two broad theories against the Prosecution’s request.

First, the OPCD argued the Prosecution misinterpreted the procedural justification for its request. The foundational treaty of the ICC, the Rome Statute, allows for in absentia confirmation of charges in two circumstances under Article 61(2)(a) and 61(2)(b). Article 61(2)(a) involves a situation where a defendant waives their right to in-person confirmation and is not relevant here. However, Article 61(2)(b) allows for in absentia confirmation in situations where the defendant “Fled or cannot be found…” and is the supporting procedural clause the prosecution used for its request.

According to the OPCD, the Prosecution has misinterpreted 61(2)(b) to mean simply any situation where a defendant cannot be apprehended or found. However, the structure of the Rome Statute, the intention of its drafters, and academic treatises indicate that 61(2)(b) is only meant to apply after an initial appearance by the defendant before the Court. Or, in other words, 61(2)(b) is meant to apply when a defendant has escaped ICC custody in an intermediary period between initial appearance and confirmation of charges.

In addition, the OPCD also argued that no reasonable efforts had been made to notify Mr. Kony of the charges against him. This argument is also based on interpretation of 61(2)(b) which differs from the prosecution. While 61(2)(b) allows for in absentia confirmation in cases where a defendant has fled or cannot be found, it also requires that reasonable efforts have been made to inform the defendant of the charges against them. The OPCD has argued that the only way for Mr. Kony to be made reasonably aware of the charges against him is to re-issue his arrest warrant and to broadcast it for a designated period of time.

Secondly, the OPCD argued that the Prosecution failed to carry its burden in showing that the circumstances of the Kony case were extraordinary enough to warrant in absentia confirmation of charges. The OPCD argued that the Prosecution gave no evidence to show that in absentia confirmation would support the policy considerations it put forth. Further, the OPCD argued that an extensive period of time to apprehend a suspect does not, by itself, demonstrate cause for in absentia confirmation of charges. Lastly, the OPCD pointed out that judicial and victim considerations had already factored into the Kony case in previous motions and decisions.

It should be noted that the representatives of the victims contacted the surviving victims regarding the Prosecution’s request; they were in unanimous support.

At present, it is uncertain if the ICC will support the Prosecution’s request. While the OPCD made compelling arguments, it is more likely that the Court will be considering the precedential ramifications of its decision more than anything. As the Prosecution stated, there would be potential to use in absentia confirmation of charges in similar future circumstances. To address the elephant in the room, a ruling in the Prosecution’s favor could raise uncomfortable questions for the Court regarding the situation of Mr. Putin, whom the ICC issued an arrest warrant for on March 17th 2023.

For further information, please see:

ICC – OPCD Observations on the Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence – 30 Mar. 2023

ICC – Public Redacted Version of the “Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” – 24 Nov. 2022

ICC – Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova – 17 Mar. 2023

ICC – Victims’ Views and Concerns on the “Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” – 30 Mar. 2023

Reuters – ICC prosecutor seeks to revive case against fugitive Kony – 24 Nov. 2022

SROF Calls on Guatemala to not use Criminal Proceedings Against Journalists for their Actions in their Capacity as Journalists

By: Marie LeRoy

Impunity Watch Staff News Writer

WASHINGTON D.C., United States – The Office of the Special Rapporteur for Freedom of Expression (SROF) has issued an statement sharing their deep concern with the criminal investigation against journalists in Guatemala.

Picture of José Rubén Zamora’s son holding the last printed edition of Zamora’s Newspaper el Periódico. The cover reads “We won’t be silenced.” Picture curtesy of Global Investigative Journalism Network.

On February 28, 2023, an investigation was initiated against eight journalist who had all covered the criminal proceedings against journalist and government critical newspaper president José Rubén Zamora, who has been imprisoned since July 2022. The Guatemalan Prosecutor’s Office argued that the journalists were attempting to “attack the personal sphere of the operators of justice” when covering Mr. Zamora’s case. These news stories at issue discussed the disciplinary process of Mr. Zamora’s case and questioned decisions by the judicial officials. The coverage of Mr. Zamora’s criminal proceedings could, as according to the Guatemalan Prosecutor’s Office, possibly be considered “obstruction of justice”.

While Guatemala maintains that it recognized the fundamental right of freedom of expression it claims that the investigation into the journalists does not infringe upon that right. The state further states that this investigation does not seek to limit, restrict, or threaten this inherit right but seeks to discover whether the journalists, in their capacity as journalists, knowingly spread false information to influence or hinder the criminal proceedings against Mr. Zamora.

Organizations around the world have responded to this threat to freedom of speech and democracy by voicing their objections to the investigation. The president of the Guatemalan Association of Journalists, Mario Recinos, stated that this is a “deterioration in rights” and compared this action to the Nicaragua’s government who famously have destroyed the rights of journalists. The Committee to Protect Journalists has also publicly urged the end to the investigation and let Zamora go. They stated that the criminal investigation of the journalists are a pointed attempt to “intimidate and harass an investigative outlet and journalists working tirelessly to expose corruption.” PEN International appealed to Guatemala to stop the “harassment of journalists.” The United States Department of State also joined the outcry by issuing their own statement urging Guatemala to support journalists and journalistic functions for the health of the Guatemalan democracy.

SROF warns of the potential consequences of bringing a criminal action against the rights of the journalists’ ability to inform and report and the correlating right of the public to be informed in relation to the continuation of democracy.

SROF calls on Guatemala to adhere to the international standards on freedom of expression for all criminal investigations against the press.

 

For further information, please see:

AP – Judge orders investigation of Guatemalan journalists – Feb. 28, 2023

CPJ – CPJ calls for Guatemala to halt investigation into elPeriódico journalists – Feb. 28, 2023

Global Investigative Journalism Network – In a Hostile Climate Guatemala’s Journalists Fear the Law Being Turned Against Them – Feb. 13, 2023

OAS — SRFOE expresses concern about the opening of a criminal investigation against journalists in Guatemala for their coverage of matters of public interest – Mar. 29, 2023

PEN – Guatemala: Authorities Must Stop Legal Harassment of Journalists – Mar. 9, 2023

U.S. Department of State – Persecution of Journalists in Guatemala—Mar. 2, 2023

Court Finds Application Inadmissible in Case against Policies against Pregnant, Married Students

 

By: Sallie Moppert

Impunity Watch News Staff Writer

ARUSHA, Tanzania – The African Court on Human and Peoples’ Rights (“ACHPR”) determined that  the application regarding several human rights violations that occurred as a result of Tanzania’s policy on pregnant or married female students in schools was inadmissible.

Schools in Tanzania have had the power to expel students who were married or became pregnant since the 1960’s. Photo courtesy of The Borgen Project.

Since the 1960’s, schools in Tanzania have had the power to refuse educating pregnant students. Tanzanian President John Magufuli stated that no pregnant student would ever attend or be allowed to return to school while he is in office, claiming that their presence would “encourage other girls to get pregnant” or be too distracting for students to concentrate while in school. According to the Organization for Economic Co-operation and Development reported in 2021 that approximately one in five girls in Tanzania fifteen years and older have been or were married before the age of eighteen.

Equality Now, a human rights organization, along with Tike Mwambipile, brought suit against the state of Tanzania, arguing that education was a right for all girls, regardless of whether or not they were married or had a child, and this policy was discriminatory against them.

One of the primary reasons for determining that the application was inadmissible was that there are additional applications for similar relief pending with other entities. On 29 July 2021, the African Committee of Experts on the Rights and Welfare (the “Committee”) of the informed the AFCHPR that it had received a similar application and the matter was pending determination. The Committee further informed the Court that it had already declared the application as admissible and that it would hold a hearing of the case in its upcoming Session.

The Committee ultimately decided that Tanzania had committed several human rights violations, including discrimination, right to education, right to health and health services, and protection against child abuse and torture. As the AFCHPR found that the matter had already been adjudicated and settled, it found the application to be inadmissible for further deliberation.

 

For further information, please see:

African Court on Human and Peoples’ Rights – The Matter of Tike Mwambipile and Equality Now v. United Republic of Tanzania – Dec. 1, 2022

Equality Now – African Court On Human And Peoples’ Rights To Give Verdict On Case Challenging Tanzania’s Ban On Pregnant Girls And Adolescent Mothers Attending School – Nov. 30, 2022

Equality Now – Girls in Tanzania Who Marry Or Become Pregnant Should Be Allowed To Attend School – Oct. 5, 2022

The Borgen Project – Educating Pregnant Students in Tanzania – Sept. 5, 2017