Family Separation Under the Trump Administration: Applying an International Criminal Law Framework

Reilly Frye | March 19, 2020

In April 2018, former Attorney General Jeff Sessions announced the “Zero Tolerance Policy.” The policy significantly increased criminal prosecution of immigrants entering the United States without inspection. Increased adult prosecution directly led to family separation. Parents were sent to federal jail and their children went to the Office of Refugee Resettlement. Neither institution communicated with the other, and the United States government lost track of parents and children. The government separated nearly 3,000 children from their parents, going as far as deporting over 400 parents to their countries of origin while their children remained in the United States. Many of these separated families were seeking asylum.

Domestic litigation is ongoing regarding the family separation policy. Yet international litigation could also be an avenue of justice for these parents and their children. Recently, in a September 6, 2018 decision regarding the deportation of the Rohingya people from Myanmar to Bangladesh, the International Criminal Court (ICC) found that the crime against humanity of deportation has a start point and an end point. If just one of these points is within a State Party of the Rome Statute, then the ICC can exercise jurisdiction over the entire crime—even if the crime involves a country that is not a signatory of the Rome Statute like the United States.

In the case of the U.S. government’s family separation policy, the starting point is the United States, and the end point is the Central American countries that are State Parties to the ICC, like Mexico, Honduras, El Salvador, and Guatemala. Because these Central American countries are members of the ICC, the crime against humanity of deportation can theoretically invoke ICC jurisdiction over U.S. officials. In short, the ICC could prosecute U.S. government officials for the crime against humanity of deportation that occurred during the Trump Administration’s family separation policy, despite the U.S. not being a signatory of the Rome Statute.

Since the U.S. is not a member of the ICC, there would be no obligation for the government to surrender any official indicted by the Court. Indeed, considering former National Security Adviser John Bolton’s recent attack against the ICC regarding the Situation in Afghanistan, it is likely that the U.S. government would do everything possible to delegitimize or ignore any ICC decision concerning the Trump Administration. U.S. government retaliation could come in the form of sanctions, an increase in the number of bilateral treaties, or lack of cooperation. More likely than the government exercising complementarity—arguably the simplest way to avoid an ICC prosecution—the Trump Administration could also use its status as a permanent member of the United Nations Security Council to defer the prosecutor’s investigation.

Nonetheless, despite the barriers to enforcement, should the ICC prosecute top U.S. officials for the Zero Tolerance Policy, international criminal law still has a place in denouncing the family separation that occurred in summer 2018. The international community’s perception of a country’s stance on human rights has wide-reaching impacts, even for a global power such as the U.S. The ICC’s reach has grown exponentially due to its recent jurisdictional decision regarding the Rohingya. Any decision regarding ICC prosecution of U.S. officials for the Trump Administration’s family separation policy would have wide-reaching impacts for the world.