CHRC Delivers Report on Family Separation as a Crime Against Humanity

Columbia University’s Center for Mexico and Central America’s (CeMeCa) Expert Paper Series publishes a report by Sarah J. Diaz and Jenny Lee of Loyola’s Center for the Human Rights of Children condemning the Trump Administration’s systematic execution of parent-child border separations under its Zero Tolerance policy as crimes against humanity. 

December 6, 2022

Chicago – The report, entitled Zero Tolerance: Atrocity Crimes against Migrant Families in the United States: An Accountability Framework for Family Separation, synthesizes data gathered from litigation, the Freedom of Information Act requests, and publicly available reports written by NGOs, government bodies, and international organizations to determine how the Trump Administration’s policy of family separations unfolded.

The review found that the Trump Administration implemented the policy of family separation under Zero Tolerance with the specific intent to deter migration from the Northern Triangle countries of Central America. Critically, the report found that terrorizing children and families through parent-child separation was central to the Trump Administration’s policy, not merely an unfortunate byproduct. The report found that the Trump Administration was at all times aware of the grievous and lasting harm that the family separation policy would cause to children, and that the administration exploited harm to children to employ pervasive illegal coercive practices to force deportations of separated families. As of the date of the report’s publication, the Trump Administration separated over 5,500 children from their parents; however, an accurate number will never be known.

The report’s factual findings indicate that the acts carried out by the Trump Administration to effectuate parent-child separations via Zero Tolerance constitute the crimes against humanity of persecution, deportation or forcible transfer, torture, and other inhumane acts under Article 7 of the Rome Statute, the statute of the International Criminal Court (ICC). The report finds that these crimes against humanity fall within the jurisdiction of the ICC. While the U.S. is not party to the Rome Statute, the ICC has indicated that it may exercise jurisdiction over certain transboundary crimes, including deportation, persecution, and other inhumane acts, which are initiated or completed in a state that is party to the Rome Statute, including all the countries in the Central American Northern Triangle.

While the Biden Administration created a Task Force to enable the reunification of children separated from their parents, there is no indication that the U.S. government intends to pursue accountability nor institute an effective prohibition on the use of parent-child separations in the future. However, the ICC Office of the Prosecutor has stated that there is “a strong presumption that investigations and prosecutions of crimes against children are in the interests of justice,” and that wherever the evidence permits, the ICC “will seek to include charges for crimes directed specifically against children.” Thus, the report formally recommends that the situation of family separation pursuant to the Zero Tolerance policy be referred to the International Criminal Court to hold the Trump Administration accountable for crimes against humanity. The report also calls upon the Biden Administration to appoint a special prosecutor in conjunction with the U.S. Attorney General to investigate avenues for domestic criminal accountability, and to make every effort to immediately restore the victims of crimes against humanity, including reunifying and providing compensation to the families who have suffered and continue to suffer from separation under Zero Tolerance.

The full report can be found here. 

For media inquiries contact Sarah J. Diaz, sdiaz10@luc.edu."