Emerging Voices: Taking Trump to the Hague – Can the ICC Prosecute Abuses on the US – Mexico Border?

[Tasnim Motala is a fellow at Howard University School of Law, where she supervises the Civil & Human Rights Clinic.]

The ICC, which left the United States reeling at the possibility of an investigation into abuses in Afghanistan, might have yet another avenue to hold the United States accountable for human rights abuses, but this time closer to home—on the US- Mexico border.

Last year, the Pre-Trial Chamber upheld the ICC’s jurisdiction over Myanmar’s deportation of its Rohingya population. The PTC maintained jurisdiction because “one element of this crime or part of it is committed on the territory of a State Party,” i.e. the Rohingya were forcibly displaced from Myanmar into the territory of Bangladesh (a state party). The PTC further noted that its jurisdictional reasoning could apply to other crimes, so long as at least one element of that crime occurred in Bangladesh (or another state party). 

With mass migrations and refugee crises occurring on almost every continent, the implications of the PTC’s decision is far-reaching. In particular, could this decision be a possible inroad into investigating human rights abuses occurring on the U.S.-Mexico border? 

The United States partakes in a number of actions that could be interpreted as forcible deportations. Professor Kevin Jon Heller has suggested that a recent practice of denying passports to Americans of Mexican descent living in border towns, birthed with the help of midwives, could be one possible hook.

But there are others, which may be even more expansive. The United States, as a matter of policy, turns away Central and South American asylum seekers through illegal pushbacks and metering of migrants attempting to enter the country, and by deterring them from entering the United States through family separation and detention, and affording them minimal forms of due process to prove their asylum claims. This practice raises the following question: could the US’s policy towards asylum seekers be considered the crime against humanity of deportation?  

To answer this question Article 7(1)(d) of the Rome Statute, which defines the crime against humanity of deportation, must be analyzed.  Whether the US’s policy towards asylum seekers constitutes a forced displacement largely turns on (1) the forcible character of the displacement; (2) whether the seekers are “lawfully present” in the US, when detained or deported; and (3) whether the US has grounds under international law to deport them.

A. Forced Displacement

Migrants who are deported across the U.S. border into Mexico are forcibly displaced. Deportation is by nature coercive. The Elements of the Crimes has defined forced displacement as encompassing both physical and psychological force “caused by violence, duress, detention, psychological oppression or abuse of power.” (Elements of the Crimes, at Art. 7(1)(d) para. 1 and n. 12)  Even when asylum seekers and other migrants sign voluntary departure forms, coercion, threats of detention, deportation, relocation to remote places, and sharing their personal details with the government, could render such departures as forced displacement. (Guy S. Goodwin-Gill, The Refugee in International Law, 2nd ed , at p. 155 and n. 172).

B. Lawful Presence

Although asylum seekers and other migrants may not lawfully be present in the US under domestic law, “lawful presence” is defined by international law. (Vincent Chetail, Is There Any Blood on My Hands? Deportation as a Crime of International Law, at p. 925). Under international law, undocumented asylum-seekers are lawfully present as long as their claim to refugee status is pending. Moreover, even if an asylum seeker’s application is rejected during the initial credible fear interview, given the lack of procedural safeguards in the US asylum process and the widespread coercion and abuse of migrants throughout the US immigration process, many unsuccessful asylum seekers are arguably lawfully present in the US under international law.

In particular, the expedited removal process does not provide asylum seekers adequate safeguards to ensure that their claims of asylum are properly considered. The process as a whole values efficiency over rights and is practiced with the eye of minimizing and deterring entry into the country. It is possible for a bona fide asylum seeker to be deported without judicial review over their asylum application. Asylum seekers are not granted a lawyer and they often do not understand the legal procedures that they are facing. Additionally, asylum officers lack cultural competence and effective translators. At times, they have also failed to ask asylum seekers crucial questions that form the basis of their asylum claims. In short, US asylum policy is so lacking in procedural safeguards that it results in bona fide asylum seekers, who under international law are lawfully present in the US, being deported.

As a result, individuals with credible asylum claims often fall through the cracks of the US immigration process. Their legitimate asylum claims make them lawfully present in the US, despite the government’s findings to the contrary.  

C. Absence of Permitted Ground

Even if an asylum seeker is not found to have a credible fear by US authorities and is thus eligible for removal under domestic law, the US might not have grounds under international law to deport them. Particularly, the principle of non-refoulement prohibits returning failed asylum seekers to a country where they risk persecution, torture, or other serious violations of human rights. The principle of non-refoulement is customary international law. Some have argued that non-refoulement has reached the level of a jus cogens norm that cannot be derogated, even despite a negative asylum claim. (UNHCR Note on the Principle of Non-Refoulement at n. 1 and  Jean Allain, The jus cogens Nature of non-refoulement).

Moreover, deportation can be illegal under international law if it lacks procedural safeguards. Article 13 of the ICCPR requires an opportunity for individuals to “submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority.” Arguably, the expedited removal process, in which it is possible for an asylum seeker to be detained and removed without a hearing in front of an Article III or immigration judge, lacks the required procedural safeguards.

Additionally, the mass detention of immigrants, the separation between families, and widespread abuse and coercion inherent at the border violate international human rights writ large. This perceived environment of prejudice, racism, and abuse discourages asylum seekers from staking their bona fide claims and intimidates them into accepting deportation in order to end their suffering.

If one of these grounds is lacking, it is also possible that the deportation can fall within the residual categories of “other inhumane acts” under Article 7(1)(k), when the removal process is enacted in such a way that it causes great suffering or serious injury to the body or to the mental or physical health of the deportee, or under Article 7(1)(h), when the removal process is linked to the persecution of a racial, ethnic, or national group. (Kupreskic Judgment, at para. 566).

Additionally, crimes against humanity must be part of a widespread or systematic attack. While an extended discussion of this requirement is beyond the scope of this post, it is likely that abuses on the US-Mexico border would meet this threshold. International tribunals have described attacks as any “unlawful act” prohibited by the statute in question. (Akayesu Judgment, at para. 582). Although some international law scholars and international tribunals have held that proof of a plan or policy is not required for attacks to be systematic (Tadic Opinion and Judgment, at para. 653), an inquiring tribunal need not look far to find proof of a formalized immigration practice that by policy targets and deters asylees from seeking relief.

Even if the deportation of asylum seekers on the US-Mexico border meets the criteria of the crime against humanity of forced displacement, it is unlikely that the ICC will initiate an investigation into the abuses. This topic is, however, a piquing area of further thought: by premising its investigation into Myanmar on the crime of forced displacement, is the ICC opening the doors to an examination of various states’ immigration policies? (Almost certainly, Myanmar will argue that the Rohingya are not lawfully present in Myanmar—most Rohingya having had their citizenship stripped through a series of prejudicial citizenship laws—thereby requiring a future ICC inquiry into Myanmar’s domestic citizenship laws.) While immigration is an area historically relegated to the sovereignty of individual states, perhaps the ICC is signaling that even abusive immigration practices are not safe from international accountability.