Should We Send Trump to the Hague?

During the six weeks ending Wednesday, the United States government executed a policy of kidnapping children. At this very moment, thousands of children sit in literal cages with no idea where their parents are or if they will ever see them again.

Despite the dehumanizing rhetoric about immigrant criminals with which Donald Trump has tried to justify this unjustifiable policy, the change that created it entirely dealt with non-criminals: Attorney General Jeff Sessions’s “zero tolerance” policy, combined with a narrowing definition of asylum, meant that even families fleeing gang and domestic violence would be criminally prosecuted, and all, in a major change from the prior policy, would be incarcerated. A stunning 91 percent of parents separated from their children are only charged with misdemeanors—and some have not even been charged. To further discourage some of the world’s most vulnerable people from seeking freedom and prosperity in America, the Trump administration turned to taking children out of their parents’ arms—sometimes literally—and holding them separately from their parents.

The horrifying outcome—children in cages screaming for their parents and infants and toddlers in “tender age shelters”—represents an intentional violation of human rights. As a deterrent for the supposed crime of seeking a safer and better life, the policy violates the Eighth Amendment’s “cruel and unusual punishment” clause (even for non-citizens, as judges have ruled). One noteworthy pediatrician called the family separation policy “government-sanctioned torture of children.” Trump’s immigration policy runs afoul not only of basic decency and our own Constitution but also of international law: Meg Satterthwaite and Rebecca Riddell of Just Security write that the U.S., in its rush to inflict maximum pain on asylum seekers and their children, is violating conventions on refugees, torture, and the rights of the child.

The intense public outcry resulted in Trump signing an executive order that stopped future separations (despite repeating for days that, somehow, only the Democratic minority in Congress could fix the “law” behind it). Democrats have also called on Secretary of Homeland Security Kirstjen Nielsen (who presides over Immigration and Customs Enforcement) to resign. Needless to say, these responses are not enough. The order does not guarantee that any of the staggering 2,300 children already separated would ever reunite with their parents. It merely replaces future separations with family detention, which already been the target of intense legal and human rights criticism. Gerald L. Neuman, the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School and the co-director of the Human Rights Program at the Law School, wrote in an email that in his opinion, detaining children, with or without their parents, in order to deter seeking asylum “amounts to arbitrary detention in violation of the United States’s obligations under international human rights law.”

Perhaps even more importantly, the possibility of an embarrassing retreat, or even a lost Cabinet post, clearly failed to dissuade Trump, Sessions, or Nielsen from implementing the policy. It will not stop them, nor future policy-makers, from approving future horrors. Instead, we must investigate this crime against humanity like the crime it is—and actually bring to justice those responsible. Journalist Sean McElwee has one suggestion: The Hague.

McElwee was an early adopter of the “abolish ICE” slogan, and now, ICE abolitionism has reached center-left discourse. Washington Post columnist and former Crimson Editorial Chair Molly L. Roberts ’16 endorsed the idea; Chris L. Hayes (an editor-at-large at The Nation, where McElwee published an article called “It’s Time to Abolish ICE”) discussed it with Senator Kamala Harris; yesterday, New York gubernatorial candidate Cynthia Nixon called for its abolition. In recent weeks, McElwee has added calls for sending Sessions, Nielsen, and ICE director Thomas Homan to The Hague to his Twitter name, and this idea deserves a similar promotion to discussion in elite circles—Harvard, MSNBC, the Washington Post, and Democratic candidates’ platforms.

Of course, it is basically impossible that Nielsen, Sessions, Trump, or Homan (henceforth the “Big Four”) would stand trial at The Hague’s International Criminal Court. Because the United States is not a party to the Rome Statute, which created the ICC, these crimes lie outside its jurisdiction. (Technically, the United Nations Security Council could refer the case to the ICC, but given the threat of U.S. veto, Neuman says such a referral is “not a factual possibility.”)

But McElwee is less concerned with the mechanics: His point is that, in a remotely sane world, the Big Four would face some kind of justice. “The international community should implement aggressive and punitive sanctions on the United States until it commits to abiding by international law. Donald Trump, Kirstjen Nielsen, Jeff Sessions and Thomas Homan have all been party to brutal human rights violations. If the law is to mean anything, the leaders of the most powerful country in the world should not be above it,” he wrote via a Twitter message.

Indeed, the Big Four could only feel comfortable instituting this policy because of the history of American political leaders avoiding accountability for the consequences of their policies. Imagine how different the discussions among them as they formed the family separation policy might have been if anyone in the Bush administration answered for starting a war that killed more than 250,000 people on false pretenses or if, as the late Anthony Bourdain put it, Henry Kissinger had been treated like someone who “secretly and illegally bombed” a “neutral nation” instead of as a Nobel Peace Prize winner allowed to “nibble nori rolls and remaki at A-list parties.” The norm that let these atrocities go unpunished enabled the Big Four to create child internment camps.

As they would perfectly understand, prosecuting their crimes would create a deterrent, necessary to protect future generations from similar abuses. McElwee points out that immigration will be an increasingly critical human rights issue as climate change increases displacement. “Rising displacement raises the potential for forced movement and other brutal human rights violations,” he wrote. “Were the international community to try Trump, Sessions, Nielsen and Homan it would send a clear and necessary signal about the treatment of refugees and asylum seekers.”

If The Hague is out of the question, one law that does apply is 18 U.S.C. 242, which makes it illegal to intentionally violate Constitutional rights. That statute carries a maximum jail sentence of one year. That might seem a short stint, but imagine the impact their mere appearance in court might have on future administrations. Imagine a government in which people believed their decisions had consequences—real consequences, for them. Next time, they might think twice about the suffering their recklessness and intentional cruelty might cause.

Trevor J. Levin ’19, a former Crimson Arts Comp Director, is a Social Studies concentrator in Mather House. His column appears on alternate Fridays.