Trump’s Deportations as an Emerging Crime Against Humanity

[William Worster has taught public international law, the law of international organizations and international migration and refugee law at The Hague University of Applied Sciences for more than sixteen years]

This post raises the possibility that the current and proposed deportations from the US might rise to the level of a crime against humanity as they unfold. Recent deportation actions by the Trump administration have included DACA recipients and people in protected status, and now might even be expanded to include U.S. citizens. Other commentators have extensively discussed the legality of these actions and the proposal regarding US citizens under US law. Courts, including the US Supreme Court, have stepped in to pause some of the removals. However, these discussions so far have overlooked the possibility that these deportations might also amount to the crime against humanity of deportation. While international law generally supports a state’s right to deport unlawfully present non-citizens, when a state systematically and knowingly expels individuals who have a legal right to remain, in an arbitrary manner contrary to international law, within a larger context of similar deportations, such actions can be criminal. Provided that the destination state(s) for deportations are parties to the Rome Statute of the International Criminal Court, such as Mexico, El Salvador, and most Central American states, the ICC might even have jurisdiction over the offense.

This author has previously warned that any attempt to mass deport “Dreamers,” who, despite being technically unlawfully present, are registered under the Deferred Action for Childhood Arrivals (DACA) program and enjoy protection from deportation, would constitute a crime against humanity. This post expands that analysis to cover a wider range of status categories and includes developments since the inauguration of the new administration.

Background

People from several groups with differing forms of lawful status have been targeted for removal. 

Multiple reports indicate that hundreds of international students have had their student statuses terminated, generally without notice to their universities. We have also seen prominent cases such as those of Mahmoud Khalil and Rümeysa Öztürk, who have been detained and are potentially subject to deportation. In addition, international university staff have been detained and may face expulsion, despite risks to their safety, as in the case of Kseniia Petrova.

This author has already mentioned Dreamers above, who are protected from deportation, yet there are reports that some of them have been removed. 

Asylum seekers, particularly Venezuelan migrants, have been deported by invoking the 1798 Alien Enemies Act. Merwil Gutiérrez, a 19-year-old Venezuelan asylum seeker was mistakenly detained and deported to El Salvador, where he remains imprisoned. Gutiérrez had no criminal record and was awaiting a court date for his asylum claim. 

By now, most readers will be familiar with the case of Kilmar Abrego Garcia, a Maryland resident, who was mistakenly and unlawfully deported to El Salvador despite an Immigration Judge’s order granting him withholding of removal due to the threat to his life. The US Supreme Court ordered the facilitation of his return.

In many of these cases, there is little to no evidence that the individuals have done any of the acts that are alleged to serve as the basis for the removal, with reports that deportations could even be based merely on AI decision-making or doctored photographs. In the deportation of Abrego Garcia, the Government admitted that “ICE [Immigration and Customs Enforcement] was aware of his protection from removal” and that he “was removed to El Salvador because of an administrative error.”

And now, most shockingly, Trump is suggesting that U.S. citizens with severe criminal records could also be deported to prison in El Salvador. The US has deported its own citizens before, though these deportations have been acknowledged as mistakes and remedied in the past. This proposal would transform errors into an unprecedented, deliberate strategy. Several days ago, a US citizen was reportedly detained for several hours while attempting to re-enter the US.

The issue that underlies all of these situations is that these individuals have a legal right to remain in the US, with only very limited exceptions.

Deportation as a Crime Against Humanity

The concept of deportation as a crime against humanity has historical roots, including cases from the Nuremberg and Tokyo tribunals, and was included in the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Court for Sierra Leone, Extraordinary Chambers in the Courts of Cambodia, and Kosovo Specialist Chambers, as well as being included in the Rome Statute of the International Criminal Court (ICC). As such, several people have been prosecuted for the crime in the recent past. Under Article 7 of the Rome Statute of the International Criminal Court (ICC), deportation or forcible transfer of population constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population due to a state or organizational policy. The ICC is currently investigating the situation in Bangladesh for possible violations of the crime of deportation against the Rohingya people in Myanmar.

Within the limitations of a post, this author will very briefly highlight the possibility that certain American officials may be on the brink of committing this crime. This post will not examine the issue of formal or informal state or organizational policy, as its existence and promotion by the administration appears to be quite clear. For the sake of brevity, this post will also not undertake a lengthy application of modes of responsibility, given the extensive number of persons involved, from ICE (Immigration and Customs Enforcement) agents to the President himself.

An Attack Against a Civilian Population

In order to qualify as a crime against humanity, the deportations must be forcible and result in expulsion out of the state. This does not necessarily mean the use of the military, provided the deportation results from a coercive, involuntary act. For this requirement as well, this post will not undertake an extensive analysis. At least during the election, Trump did not exclude using the military to effect the removals. For the students and others who simply received notice in the mail that their status was terminated and self-deport, there is a harder argument that they were subjected to an attack, though should ICE agents ever enforce the removal, then coercive force would have been used. 

Unlawful Deportations

More importantly for this discussion, the deportations must be unlawful, meaning that victims were lawfully present and that their removal was unlawful under international law. Certainly, normal deportation is the prerogative of the state, including mass deportations, though that presumes that the deportations are only executed after due process. Should the current wave of removals reveal any patterns of discrimination on the basis of ethnicity, religion, etc., then there would be yet another international law violation.

Beyond procedural deficiencies, what substantively distinguishes lawful from unlawful deportations is whether the deportation violates international law. While the Human Rights Committee has opined that whether a person is lawfully present in a state largely depends on domestic law, the Committee also noted that the domestic law must be in conformity with international law. The fact that most of the Trump removals appear to have no basis in US law, i.e. no showing of violating immigration law or criminal history, they are likely to be contrary to international law under any measure of that term.

Significantly, deported persons do not need to be nationals of the state from which they are removed in order for their removal to be unlawful and the act to constitute the crime against humanity of deportation. 

Persons with asylum or withholding of removal are legally protected from deportation due to the non-refoulement obligation, when there is a risk that the person will be tortured, severely mistreated, or suffer some other grave violation of human rights. Petrova, for example, though a resident in the US on a work visa, may be at risk of political persecution if she is returned to Russia.

DACA recipients remain in unlawful status under US law, however, as this author previously argued, they have a valid claim that the US is their “own country” as that expression is used in the International Covenant on Civil and Political Rights. After all, these individuals were brought to the US as children and have only known the US as their country, some even mistakenly believed that they were US nationals all along. As such, none of them are a “mere alien” subject to removal, but have human right to remain under international law. In fact, even if the US was not their “own country,” the Human Rights Committee has concluded that a formally unlawfully present non-citizen will be considered lawfully present under international law when their status has been “regularized.” This could include declining to enforce a deportation order in lieu of other conditions on presence. 

Some authorities have even argued for a less demanding framework than lawful stay, looking instead to whether the people are being deported from “their communities and … homes” and therefore perhaps not dependent on enjoying lawful status.

And of course, under any standard, US citizens have a right to remain in their own state of nationality. This would even cover US citizens whose nationality was revoked in violation of international legal standards, such as arbitrariness, discrimination, or the creation of statelessness. The Human Rights Committee has further held that “[T]here are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.” 

Therefore, the removal of people in these categories, especially coupled with issues of procedural arbitrariness,  result in arbitrary deportations sufficient to satisfy the crime of deportation.

The Contextual Element

In addition, the deportations must have a nexus with the contextual element of the crime, specifically, they must form part of a widespread or systematic attack against a civilian population. Between the inauguration and mid-March, the Trump administration claimed that it had deported 28,000 people, including border rejections, which is, strangely, a rate of less than half the number of people deported during the Biden administration. We certainly have a handful of shocking cases, but, as of yet, we do not have clear data on how many of these thousands of cases would amount to unlawful expulsions. On first glance, the deportation of hundreds of Venezuelans to El Salvador, many with little evidence and none with a hearing, could already qualify as widespread. Even if it has not yet met the required threshold, current practice appears to be on track to do so. During the election campaign, JD Vance speculated that deportations could amount to 1 million people per year. Given the intentional policies mentioned above, it is highly likely that the situation either already has or will eventually develop into a larger pattern of practice with its target being civilians, unless the other branches of government intervene. 

The Mental Element

If these material elements can be satisfied, it remains to establish that the deportations were undertaken with the necessary mens rea. In short, the mental element simply requires that the person act with the intent to remove the individuals across a border with the knowledge that the removal forms part of the widespread or systematic attack and with the knowledge that the individual’s presence was lawful. While it is debatable whether the intent to remove requires an intent to permanently remove or not, in the cases mentioned above, even that higher standard could likely be met. To be criminally responsible, the individual need not know all of the details of the deportation policy, or even share the intent of the organization deporting the victims. The accused need only know that their acts would form part of the widespread or systemic attack. 

There is no evidence that anyone involved in these operations is unaware of the overall context and the arbitrary nature of the removals. Trump himself has argued that the US “cannot give everyone a trial.” In fact, in the case of Abrego Garcia, the Government has admitted to awareness that the removal was unjustified, though it is not entirely clear when that awareness arose. Nonetheless, senior administration officials have already announced that, should he be returned to the US, he will simply be deported again.

No Plausible Justifications

There also do not appear to be any justifications for the deportations. International criminal law recognizes that it is not a crime to remove people, even coercively, from situations of massive humanitarian crisis or armed conflict for reasons of their own safety or even for military purposes, on the condition that the state is not itself the cause of the military necessity. People can also be removed due to emergency situations of epidemics or natural disasters. But in these cases, it is necessary that evacuated people are returned home as soon as it is feasible.

Conclusion

A short blog post cannot fully do justice to the complexity of the international crime of deportation in such a significant and quickly developing situation, so this goal of this post was to simply identify how international law may be or become relevant. Considering the above, certain actors within the Trump administration appear to be on the precipice of committing the crime against humanity of deportation, should these arbitrary removals continue and form a widespread or systematic practice. In the rush to react to these expulsions, all of the commentary and lawsuits have focused on US domestic law, and rightly so. However, regardless of whether these deportations will be excused by US law, or whether the US Supreme Court will ultimately tolerate them, they may still amount to international crimes. 

The seeds of these practices were sown a long time ago. In the Bush administration, many people were wrongly removed via “extraordinary renditions” to “black sites” overseas or to Guantanamo Bay Naval Base without judicial process, and subsequently tortured. Some even remain there today. We cannot permit disappearing people and deporting them to become normalized. 

As such, following the ICC precedent in the Bangladesh situation, should any of the people mentioned above be expelled to a state party to the Rome Statute (e.g. El Salvador), then the ICC will have jurisdiction and should investigate. And in The Hague, unlike in the US, there is no immunity for these acts.