Tuesday, June 26, 2018
That's the question that William Thomas Worster, an American-trained lawyer on the faculty at the University of Amsterdam, asks in his provocative piece, Deporting Dreamers as a Crime against Humanity. The abstract is below, and the entire paper can be accessed through the Social Science Research Network here.
Much has been written about the Dreamers and their moral claim to a right to remain in the US, but what has not explored is whether their removal from the US might implicate international law, and, specifically, whether it would constitute a crime against humanity. On its face, it seems to be an outrageous claim: that deporting non-citizens from a state would be a criminal act. International law protects a state’s ability to remove unlawfully present aliens. This is not in debate. The argument is, however, far more narrow. Specifically, the forcible, arbitrary deportation of Dreamers with an intent to permanently remove them from their residence that is protected under international law would be criminal.
This article will first consider the current law on the crime against humanity of deportation. The crime, which has a considerable pedigree, prohibits individuals from pursuing deportation of persons in certain situations. Among the key considerations is that the crime does not only apply to the forcible removal of citizens, but also to non-citizens in some circumstances. The distinction is whether the person is lawfully present in the state and that the removal is unlawful. As befitting an international crime, both of these standards are measured by international law, not domestic law.
The article then considers the case of the Dreamers. While it is true that they do not have US nationality or other authorized status, and thus a right to remain in the US under domestic law, they do have strong enough ties to consider the US their “own country”, a wider concept that nationality. Once an individual has an “own country”, he or she may not be arbitrarily removed from than state under international human rights law, unless the removal can be justified as non-discriminatory, necessary and proportionate to the risk to society. Further, under international human rights law, permissible cases of removal are very few. The removal of a non-criminal minor from the US with a long-standing home there cannot be justified as necessary and proportionate.
Provided that the possible future removal was by force, in pursuit of a policy as such, committed with intent, and that the removals were widespread and systematic, then the removal would be a crime against humanity.