Trump’s Deportations to El Salvador Are a Case for the ICC
Over the past week, international opprobrium against U.S. President Donald Trump’s deportations of Venezuelan immigrants from the U.S. to El Salvador’s mega-prison known as CECOT has gathered force. On Tuesday, a network of civil society organizations called on the United Nations to denounce Trump’s agreement with Salvadoran President Nayib Bukele to indefinitely detain the deportees. And on Wednesday, a coalition of 20 high-level U.N. experts also released a statement condemning the deportations and calling on the U.S. and El Salvador to reverse the policy.
Yet these condemnations could be made much stronger if couched in international criminal law instead of largely unenforceable human rights standards.
At the domestic level, U.S. lawyers and judges have argued these transfers—which polls show are already opposed by a majority of Americans—violate constitutional norms ensuring due process and prohibiting cruel punishment. But international experts note they also violate global standards. Some commentators are referring to the transfers as a form of illegal “human trafficking.” Some point to the norm of “non-refoulement,” by which a person cannot be returned or removed to a country where they face torture, persecution or other serious violations of human rights, all of which have been widely documented at CECOT. Some are concerned with the potential for Trump to “disappear” people into a prison system where they are denied communication with the outside world, including with their families and attorneys.
If civil society groups really want to send a signal to the Trump administration, however, they should not simply ask nicely for the U.S. to change course based on these reasons, since Trump has demonstrated that he cares little about international norms and standards. Nor should they limit themselves to mobilizing U.N. member states to name and shame the Trump administration using scattershot terminology from human rights and refugee law, which lack teeth outside the court of global public opinion. Instead, international rights groups should mobilize U.N. member states to build an international criminal case against Trump by referring the situation in El Salvador’s CECOT prison to the International Criminal Court.
There is grounds for arguing that forcible transfers of this type are not just human rights violations: When systematic and widespread, they become crimes against humanity punishable by individual criminal prosecution. And while though the U.S. is not a party to the ICC, the nature of these acts—which involve cross-border transfers to a state that is a member—creates an avenue by which Trump and others could be indicted by the court. The possibility of individual criminal responsibility for these acts would also send a much stronger signal than mere shaming and put on notice those tasked with carrying out these orders as well.
To see why, let’s begin with the legal concepts involved. At least three crimes against humanity listed in the Rome Statute of the International Criminal Court would seem to apply here. The first is “enforced disappearance of persons,” which is defined under the Rome Statute’s Article 7(2a) as the “arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”
An indictment would signal decisively to Americans that Trump’s policy is not merely counter to international as well as domestic law but sufficiently egregious to warrant individual criminal responsibility.
This definition arguably fits the administration’s logic pertaining to its deportations to CECOT, as well as the treatment of the nearly 300 Venezuelan nationals swept up by those policies. For example, Trump’s March 15 Executive Order invoking the Alien Enemies Act for those deportations sought to authorize immediate removal of any noncitizen aged 14 or older who is from Venezuela and alleged, but not proven, to be a member of the Tren de Aragua gang. And in a 2023 interview, Stephen Miller—now Trump’s deputy chief of staff—stated that using the act, which dates back to 1798, to justify the deportations “allows you to suspend the due process that normally applies to a removal proceeding.” Both of these claims have now been held up by legal challenges making their way through the domestic courts.
Meanwhile, the Rome Statute’s Article 7(2d) characterizes “forcible transfer,” defined as “the forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law,” as a crime against humanity. While this may not apply to those who are in the U.S. illegally or those deported after due process, it certainly applies to the arrest and expulsion of those without criminal records, which includes the majority of Venezuelans sent to CECOT so far; those with well-founded fears of persecution, like Andry Rose Hernandez Romero; and those with official protected status, like Kilmar Abrego Garcia, himself a Salvadoran national.
Finally, under international law, deportation must not just have lawful grounds that are lawfully demonstrated through lawful processes, but they must occur in a lawful manner. In fact, according to the Rome Statute’s Article 7(1e), “Imprisonment or other severe deprivation of physical liberty” is a crime against humanity if carried out in violation of fundamental rules of international law on a widespread and systematic basis. To intentionally remove individuals to a third-party state to be imprisoned under abusive circumstances rather than to their own government is generally referred to by human rights attorneys as “extraordinary rendition.” While that term is not defined in treaty law, it refers to participation or complicity in inhumane acts at the nexus of enforced disappearance and forcible removal, which a wide network of international lawyers considers to be judiciable at the ICC.
Of course, all of this may seem academic considering that the U.S. is not now a party to the International Criminal Court and unlikely ever to become one, which therefore makes it not typically subject to the court’s jurisdiction. Except in cases where a state voluntarily accepts jurisdiction or where the Security Council refers a case to the court, the ICC can usually only exercise jurisdiction over crimes committed by a national of a state party or committed on the territory of a state party. Generally, this leaves a huge gap in ICC jurisdiction for situations in which a nonmember state commits grave violations of international human rights or humanitarian law on its own territory unchecked by its own judicial institutions. So enforced disappearances inside the U.S. or the mass jailing of student protesters would likely escape the attention of the court, as did most of the egregious acts committed in Syria’s civil war.
However, when those acts involve forcible transfer of populations across an international border, the calculus can change depending on the ratification status of the receiving state. For instance, the ICC opened an investigation into the Myanmar military’s persecution of the Rohingya, despite Myanmar’s nonparty status at the court, because that campaign caused a massive refugee displacement into neighboring Bangladesh, which isa party to the court. As a result, the court’s prosecutor at the time argued that the crime of “forced displacement” took place on the territory of Bangladesh, even if the precipitating crimes occurred solely inside Myanmar. Similar arguments have been made on behalf of Syrian refugees who were displaced into Jordan by former dictator Bashir al-Assad’s use of torture and indiscriminate bombings during Syria’s civil war, as well as on behalf of South Sudanese refugees displaced into Uganda by starvation tactics used during South Sudan’s civil war.
So what actually matters in the CECOT case is not simply whether the U.S. is a party to the court, but whether El Salvador is a party to the court. And the answer to that question is yes: El Salvador ratified the ICC Statute in 2016. This means the court would be within its rights to open an investigation into the systematic, mass forcible transfer of individuals to CECOT.
Who might refer a case to the court? Obviously the Security Council will not, due to the veto the U.S. wields there. But international and civil society organizations, or even individuals, can refer matters to the court by making a submission through an online docket system. This won’t guarantee a response, but it can trigger the Office of the Prosecutor, or OTP, to conduct a pre-investigation. If it does, the OTP must then convince the Pre-Trial Chamber—a panel of three elected judges—of the merits of the case in order to proceed. A more effective way to initiate an ICC investigation, however, is for member states themselves to issue the referral, which obligates the OTP to investigate and would be a clearer signal of international public opinion on the matter.
Of course, even an indictment, if one emerges, will not likely lead to quick accountability, unless the U.S. government made the decision to extradite Trump to the court. That’s not unheard of. Long-time Serbian dictator Slobodan Milosevic was extradited to the Hague by a successor government after he was toppled by a student movement. But that’s not likely in the U.S., and even if indicted, sitting heads of state can easily evade capture by the court for long periods. Russian President Vladimir Putin, for example, has been largely unscathed by the ICC’s indictment against him for forcibly removing children from Ukraine, partly because states that are party to the ICC have been reluctant to disinvite him from events or arrest him if he visits their countries.
Still, an indictment for forced displacement and other inhumane acts would signal decisively to Americans that Trump’s policy is not merely counter to international as well as domestic law but sufficiently egregious to warrant individual criminal responsibility. This means individuals in federal agencies who follow the orders, as well as members of Trump’s Cabinet complicit in executing them, could also potentially be subject to prosecution down the line, under the principles of universal jurisdiction in countries where they might travel. More broadly, an ICC indictment sets a symbolic standard that the behavior is unacceptable in the eyes of the international community.
This would also be a signal to members of the U.S. military, who are required to disobey “manifestly unlawful” orders under the Uniform Code of Military Justice. This will matter even more if Trump ultimately tries to “deport” U.S. citizens to El Salvador or declare martial law. But forcibly displacing large numbers of permanent residents and asylum-seekers from the U.S., and paying a dictator to pack undocumented immigrants into an inhumane prison, is already a crime against humanity. A referral to the ICC would help make this clearer to those whose actions count.
Charli Carpenter is a professor of political science and legal studies at University of Massachusetts-Amherst, specializing in human security and international law. She tweets at @charlicarpenter.