FAMILY SEPARATION UNDER THE TRUMP ADMINISTRATION: APPLYING AN INTERNATIONAL CRIMINAL LAW FRAMEWORK.

• Author: Frye, Reilly

1. INTRODUCTION II. BACKGROUND III. DEPORTATION--THE DEFINITION UNDER INTERNATIONAL LAW A. "forced displacement of the persons concerned by expulsion or other coercive acts" B. "lawful presence" C. "without grounds permitted under international law" IV. DEPORTATION AS A CRIME AGAINST HUMANITY A. "part of a widespread or systematic attack" B. "directed against a civilian population" C. "in furtherance of a policy to commit the attack" V. CONSEQUENCES CONCLUSION INTRODUCTION

   Children representing themselves in court. Mothers frantically calling government agencies in order to find their missing kids. Rows of children sleeping on mats in warehouse-like facilities surrounded by wire fences. Wailing fathers pleading with immigration agents. Hundreds of thousands of people marching nationwide with signs that read, "Where are the children?" These are the images that dominated news cycles in the United States and abroad in summer 2018 during what some called the Trump Administration's "Family Separation Policy." (1) The U.S. government separated more than 2,800 immigrant children from their parents, and the public outrage was palpable. (2)

   Some domestic legal organizations managed to channel their rage into federal lawsuits. (3) The American Civil Liberties Union even brought a case that got a federal ruling ordering the Trump Administration to reunite the children with their parents. (4) The facts of the class action concerned a mother and her seven-year-old daughter, who were detained thousands of miles apart from one another after seeking asylum in the U.S. from violence in the Democratic Republic of the Congo. (5) Despite the court order (6) to reunite eligible families by July 12, however, some children were still separated from their parents months later. (7) Others are not allowed to be reunited based on their parents' alleged criminal histories. (8) The problem of family separation is still ongoing--and it will likely continue for months, perhaps years.

   Nonetheless, domestic law is not the only legal method to fight the Trump Administration's 2018 policy. After all, the international response to family separation occurring in the United States was nearly equally as powerful. Renowned world leaders such as former British Prime Minister Theresa May, Canadian Prime Minister Justin Trudeau, and Pope Francis all publicly denounced family separation. (9) International bodies like the United Nations also condemned the practice. The former United Nations High Commissioner for Human Rights, Zeid Ra'ad al-Hussein, publicly declared the policy "unconscionable" days after his office released a press briefing stating, "the practice of separating families amounts to arbitrary and unlawful interference in family life...." (10) International law, specifically international criminal law, also has a role to play in denouncing the Trump administration's policy.

   This Comment will propose a theoretical international criminal law response to the family separation that occurred in summer 2018. In particular, the analysis will focus on the potential response of the International Criminal Court (ICC)--a permanent intergovernmental organization and autonomous international tribunal that prosecutes individuals for atrocity crimes (11)--to the United States' Zero Tolerance Policy, announced in April 2018 by former Attorney General Jeff Sessions. (12) The Comment will conclude that the ICC could theoretically prosecute Trump Administration officials for crimes against humanity due to their involvement with the Zero Tolerance Policy and its effects of family separation.

1. BACKGROUND

   In April 2018, former Attorney General Jeff Sessions announced the Zero Tolerance Policy. (13) The policy significantly increased criminal prosecution of immigrants entering the United States without inspection. (14) Increased adult prosecution directly led to family separation. (15) Adults entering the U.S. without inspection were detained by Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) and sent to the Department of Justice for prosecution instead of going to family detention centers with their children, as previously was the custom under civil law alternatives. (16) The children could not be held with their parents in federal jail, so they were sent to the Office of Refugee Resettlement (ORR). (17) The ORR is part of the Department of Health and Human Services (HHS) and handles children who enter the U.S. unaccompanied by adults. (18) HHS usually seeks foster care placements for these children and is unaccustomed to communicating with DHS. (19) Ultimately, due to the new policy--and the quickness with which it was implemented since DHS officials did not know about the policy until the day they had to implement it--DHS and HHS were unequipped to handle tracking multiple family members through their different bureaucratic processes, and parents were separated from their children without knowing where their children were. (20) In over four hundred of these instances in which children were separated from their parents, the parent was deported back to their country of origin while their child remained in the United States. (21) Many of these families were asylum-seekers, which is a crucial fact to the argument made in this Comment. (22)

   Traditionally, the ICC would not be a viable legal response to the Zero Tolerance Policy or other U.S. government migrants' rights abuses. The ICC has many jurisdictional limitations. The first is the Court only prosecutes individuals. (23) The second is subject matter. The ICC only has the jurisdiction to prosecute four crimes: genocide, crimes against humanity, (24) war crimes, and crimes of aggression. (25) Deportation can qualify as a crime against humanity, but many acts of deportation do not fit under the ICC's definition. (26) The third limitation is that the ICC has jurisdiction only in cases when "the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court." (27) In the case of family separation, the alleged crimes were committed by U.S. citizens; the U.S. is not a State Party to the Rome Statute, the treaty that governs the ICC. (28) Thus, the ICC historically would have lacked jurisdiction to bring a case. Recently, however, an ICC decision concerning whether the Court could exercise jurisdiction over the alleged deportation of the Rohingya people changed global outlook on the ICC's jurisdiction. (29)

   On September 6, 2018, the ICC released its "Decision on the 'Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute.'" (30) In short, the ICC's prosecutor sought a ruling regarding whether the Court could exercise jurisdiction of the alleged deportation of the Rohingya people from Myanmar to Bangladesh. (31) The prosecutor was interested in starting a preliminary examination into government and military officials from Myanmar. (32) Bangladesh is a State Party of the Rome Statue and is, therefore, under ICC jurisdiction; Myanmar is not. (33) This case was monumental in international law because it ruled that if the crime against humanity of deportation occurs in one country that is not a State Party to the Rome Statute, but the crime's effects are felt in a country that is member to the Rome Statute, the ICC has jurisdiction over the alleged perpetrators of the crime--even in a country that is not a State Party of the Rome Statute. (34) In other words, the ICC can exercise jurisdiction over individuals in nonmember states in certain contexts.

   The implications of this decision are broad. First and foremost, this is an important step in holding accountable those government and military authorities in Myanmar who have committed what the U.N. Independent International Fact-Finding Mission on Myanmar recognizes as atrocity crimes. (35) The more than 71,000 Rohingya Muslims forced out of Myanmar--and those who have lost their lives to ethnic cleansing--deserve justice. (36) Second, the Court's ruling implicates alleged international criminal perpetrators all over the world who have thus far avoided prosecution. For example, Bashar al-Assad, the Syrian president wanted for alleged war crimes and crimes against humanity committed during the ongoing conflict in Syria, could be affected, as well as other members of the Syrian government, even though Syria is not a signatory of the Rome Statute. (37)

   For the purposes of this Comment, the recent ICC decision means individuals within the United States government could be prosecuted under international criminal law for the Family Separation Policy and its ongoing effects. (38) This Comment does not intend to compare the Rohingya tragedy to that of Central American immigrants. Rather, it focuses on the ICC's jurisdictional claim pursuant to the Pre-Trial's recent decision on the crime of deportation. The United States is not a State Party of the Rome Statute. (39) Nevertheless, asylum-seekers who have been deported while separated from their children come from countries that are State Parties of the Rome Statute, including Mexico, Honduras, El Salvador, and Guatemala. (40) As the ICC found in its September 6th decision, deportation as a crime against humanity has a start point and an end point. (41) If just one of these points is a State Party of the Rome Statute, then the ICC has jurisdiction over the crime. (42) In this case, the starting point is the United States, and the end point is the Central American countries that are State Parties to the ICC. Because these Central American countries are members of the ICC, the crime against humanity of deportation invokes ICC jurisdiction over U.S. officials.

   Since the U.S. is not a member of the ICC, there would be no obligation for the government to surrender any government official indicted by the Court. (43) Indeed, considering former National Security...