Mass Deportations violate U.S. and International Law.

Mass deportations violate U.S. and international law.

They’re also crimes against humanity.

By Dr. Gregory H Stanton

Founding President

Genocide Watch

President Trump’s order to arrest and deport millions of undocumented immigrants, including hundreds of thousands of refugees, violates US obligations under the 1967 Protocol on the Status of Refugees. The US Senate ratified that treaty unanimously in 1968. 147 nations are States Parties to the treaty.

The US adopted the Refugee Protocol into US law in the United States Refugee Act of 1980, passed unanimously by the Senate and signed by President Jimmy Carter, who noted, “The Refugee Act reflects our long tradition as a haven for people uprooted by persecution and political turmoil.”

The Refugee Protocol applies the operative Articles of the 1951 Convention on the Status of Refugees:

Article 1 defines “refugee” as any person who is outside the country of his or her nationality owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and who is unable or, owing to such fear, is unwilling to return to his or her country.

Article 31 says refugees seeking asylum who cross borders illegally are not to be considered criminals. States shall not impose penalties, on account of their illegal entry or presence, on refugees coming from a territory where their life or freedom was threatened. They must present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Article 33, the heart of the Refugee Convention, says: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Convicted criminals are not eligible to be protected as refugees. Article 1 F denies refugee status to anyone against whom there is evidence of a war crime, crime against humanity, or a serious non-political crime. 

However, Article 32 holds that States Parties shall not expel a refugee in their territory except in pursuance of a decision reached in accordance with due process of law. Massive ICE roundups and forced deportations without trials fall far short of that standard.

Could the US invoke Article 9 of the Refugee Convention and claim that smuggling of fentanyl by undocumented migrants is a grave and exceptional circumstance that threatens US national security and requires their expulsion?

The fatal flaw in this rationale is that the people being deported are already in the US and pose no more threat to national security than ordinary American citizens. Two-thirds of undocumented immigrants in the US have lived in the US for ten years or more.

Countries expected to resettle deportees may invoke Article 4 of the Refugee Protocol and dispute any “national security” claim in the International Court of Justice. Such countries are not legally obligated to accept the return of their citizens who have fled to the USA.

Couldn’t President Trump simply withdraw from the Refugee Protocol?  Not so fast. To withdraw from (denounce) the Protocol, the US must give one year’s notice to the UN Secretary-General. US denunciation would not take effect until one year after the Secretary-General receives notification.

Trump’s deportations are also crimes against humanity.

At Nuremberg, Nazi leaders were tried for crimes against humanity that included forced deportations of Jews. Today forced deportations are outlawed by many decisions of the International Criminal Tribunal for the Former Yugoslavia. In 2002, the International Criminal Court became a permanent world tribunal to try such crimes.

The Rome Statute of the International Criminal Court Article (7(1)(d)) makes deportation or forcible transfer of a population a crime against humanity.

The Rome Statute defines deportation as “forced displacement of the persons concerned by expulsion or other coercive acts from the area where they are lawfully present, without grounds permitted under international law.”

The US is not a State Party to the Rome Statute. US citizens cannot be tried by the ICC unless they committed a crime against a citizen or on the territory of a country that is a State Party to the ICC.

125 nations are States Parties to the ICC Statute, including 25 in Latin America and 33 in Africa. If the US deports a citizen of El Salvador, the Dominican Republic, Ecuador, Colombia, Guatemala, Afghanistan, Brazil, Bosnia, DR Congo, Nigeria, Ukraine or 114 other ICC States Parties, those countries could ask the ICC Prosecutor to bring charges against a US official who participated in the deportation of their citizens.

There is no immunity in the ICC for crimes against humanity committed by heads of state or government officials. Though it is politically unlikely, even President Trump himself could be charged for these mass deportations and put on trial.

Refugees who have sought asylum are lawfully present in the US under both US and international law. They are not criminals for entering without visas. So, too, are persons granted Temporary Protected Status (TPS) by Presidential Order. Venezuelans, Haitians, Cubans, Salvadorans, and others fleeing Marxist dictatorships or countries controlled by criminal gangs were granted protected status by President Biden.

President Trump has now rescinded TPS for Venezuelans and wants to deport 600,000 Venezuelans back into the tyranny run by the Marxist dictator Maduro of Venezuela. President Trump’s revocation of their Temporary Protected Status was arbitrary and capricious. It should be struck down by the US Supreme Court because it violates both the US Refugee Act and international law.

Universal Jurisdiction

Crimes against humanity, like genocide, torture, and war crimes are crimes of universal jurisdiction. Like piracy, they can be prosecuted no matter where the crime was committed and regardless of the defendant’s nationality. Such crimes constitute peremptory norms (jus cogens) and violate duties owed to all of humanity (erga omnes.)

Fifteen countries enforce universal jurisdiction in their courts: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, and the United Kingdom. The US has universal jurisdiction for torture and genocide.

Steven Miller

US officials who order or carry out mass deportations are committing crimes against humanity. In the future, they may travel to Europe for business or vacations. If they travel to a country with universal jurisdiction, their identities are verified, and evidence is prepared against them, they could be arrested and charged as soon as they step off their flights in Paris or Berlin. They could be put on trial there for crimes against humanity. It would not be an auspicious way to begin a vacation.

Dr. Gregory H. Stanton is Founding President of Genocide Watch and the Alliance Against Genocide. He founded the Cambodian Genocide Project. He was Professor in Genocide Studies at George Mason​ ​ University and was James Farmer Professor in Human Rights at the University of Mary Washington. He was a law professor at Washington and Lee University. In the State Department, he wrote the UN Resolutions that established the International Criminal Tribunal for Rwanda. He wrote the rules of the Khmer Rouge Tribuna​​l. He holds degrees from Oberlin, Harvard Divinity School, Yale Law School, and a Ph.D. from the University of Chicago.