06 Sep ICC Says Trump Can Be Prosecuted for Crimes Against Humanity Involving Mexican-Americans
Okay, it didn’t directly say that. But that is the logical consequence of the Pre-Trial Chamber’s new decision upholding the Court’s jurisdiction over the deportation of the Rohingya from Myanmar. According to the PTC (para. 71), the crime against humanity of deportation (unlike forcible transfer) necessarily takes place in two states, because one of the essential elements of the crime is that the civilians are forcibly displaced across an international border. The Rohingya were forcibly displaced from the territory of a non-state party (Myanmar) into the territory of a state party (Bangladesh). Hence the Court has territorial jurisdiction.
But that is not all the PTC said. It also essentially holds that the Court has jurisdiction over two other crimes against humanity — crimes it practically begs the OTP to charge: persecution and “other inhumane acts.” Here is what it says about the crime against humanity of persecution:
75. First, article 7(1)(h) of the Statute identifies, as a crime against humanity within the jurisdiction of the Court, “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph […]”. The reference to “any act referred to in this paragraph” signifies that persecution must be “committed in connection with any other crime within the jurisdiction of the Court”, which includes the crime against humanity of deportation, provided that such acts are committed pursuant to any of the grounds mentioned in article 7(1)(h) of the Statute.
76. Therefore, if it were established to the applicable threshold that members of the Rohingya people were deported from Myanmar to Bangladesh on any of the grounds enumerated in article 7(1)(h) of the Statute, the Court might also have jurisdiction pursuant to article 12(2)(a) of the Statute over the crime against humanity of persecution, considering that an element or part of this crime (i.e. the cross-border transfer) takes place on the territory of a State Party.
In other words, the ICC has jurisdiction over the persecution of the Rohingya because in that context (1) the crime against humanity of deportation is the “any other crime within the jurisdiction of the Court” that satisfies Element 4 of the crime against humanity of persecution, and (2) one of the elements of the crime against humanity of deportation involving the Rohingya took place on the territory of a state party, Bangladesh. Because of (1) and (2), it does not matter that the acts of persecution themselves — depriving the Rohingya of internationally-protected rights — might have taken place solely on the territory of a non-state party, Myanmar.
And here is what the OTC says about the crime against humanity of “other inhumane acts”:
77. Second, article 7(1)(k) of the Statute stipulates that “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, amount to a crime against humanity within the jurisdiction of the Court. The Chamber notes that, following their deportation, members of the Rohingya people allegedly live in appalling conditions in Bangladesh and that the authorities of Myanmar supposedly impede their return to Myanmar. If these allegations were to be established to the required threshold, preventing the return of members of the Rohingya people falls within article 7(1)(k) of the Statute. Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country. Such conduct would, thus, be of a character similar to the crime against humanity of persecution, which “means the intentional and severe deprivation of fundamental rights contrary to international law”. Furthermore, preventing a person from returning to his or her own country causes “great suffering, or serious injury […] to mental […] health”. In this manner, the anguish of persons uprooted from their own homes and forced to leave their country is deepened. It renders the victims’ future even more uncertain and compels them to continue living in deplorable conditions.
78. In these circumstances, the preconditions for the exercise of the Court’s jurisdiction pursuant to article 12(2)(a) of the Statute might be fulfilled as well. This is because an element or part of this crime (i.e. unlawfully compelling the victims to remain outside their own country) takes place on the territory of Bangladesh, a State Party, provided that the allegations are established to the required threshold.
In other words, the ICC has jurisdiction over the crime against humanity of other inhumane acts because (1) unlawfully preventing the Rohingya from returning to their state of nationality, Myanmar, causes them the kind of great suffering that qualifies as an inhumane act, and (2) the acts preventing the Rohingya from returning to their state of nationality are taking place on the territory of a state party, Bangladesh.
I think both conclusions are legally sound. But I wonder whether the PTC has thought through their implications — which brings me back to the intentionally provocative title of this post. As has been widely reported, the Trump administration is currently preventing an increasing number of American citizens from returning to the US from Mexico by revoking their passports at the border. According to the administration, the revocations are justified because of questions about the passport holders’ citizenship. It is overwhelmingly likely, however, that the revocations are actually just the latest manifestation of the Trump administration’s systematic discrimination against Mexican-Americans. White Americans are not having their passports revoked at the border.
By the PTC’s (sound) logic, the man responsible for the discriminatory passport revocations, President Donald Trump, is guilty of both the crime against humanity of other inhumane acts and the crime against humanity of persecution. With regard to the former, the PTC has specifically said (1) that unlawfully preventing civilians from returning to their state of nationality causes them the kind of great suffering that qualifies as an “inhumane act,” and (2) preventing civilians from crossing the border into their state of nationality is an act that takes place on the territory of the state they are trying to leave. Here, Donald Trump’s policies are unlawfully preventing Mexican-American civilians from returning to their state of nationality, the US, from the territory of Mexico, a state party. There is little question that enough Mexican-Americans are being prevented from returning to the US to satisfy the “widespread or systematic” contextual element of crimes against humanity. The ICC thus has jurisdiction to prosecute Donald Trump for the crime against humanity of other inhumane acts.
And if that is the case, the ICC also has jurisdiction to prosecute Donald Trump for the crime against humanity of persecution. Trump is preventing Mexican-Americans from returning to their state of nationality because of their ethnicity. Like the Rohingya, therefore, those Mexican-American civilians are (1) being deprived of an internationally-protected right (their right as citizens to not be arbitrarily prevented from enter their state of nationality), (2) on the basis of an impermissible ground (ethnicity), (3) in connection with “any other crime within the jurisdiction of the Court” (other inhumane acts) that takes place, at least in part, on the territory of a state party. The only (legally relevant) difference between the two situations is the particular “other crime”: deportation for the Rohingya, an element of which takes place in Bangladesh; other inhumane acts for the Mexican-Americans, an element of which takes place in Mexico.
To be sure, I doubt that the OTP will ever ask the PTC to authorize an investigation into the Mexican-American situation. The point is that, according to the PTC’s sound logic, the OTP could. Donald Trump is committing crimes against humanity within the jurisdiction of the Court as I write this.