Blog by Emily Jamieson, Junior Associate

On November 5th, 2024, Donald Trump was elected to his second term as the 47th President of the United States. Of the many things his campaign ran on, one of the most significant was to conduct the largest deportation program in United States history.[1] As of September 2025, the Department of Homeland Security (DHS) reports that “2 million illegal aliens have been removed or self-deported since January 20.”[2] This level of action has brought intense scrutiny from politicians, citizens, and human rights organizations concerned with where these individuals are being deported to, as some civilians are experiencing third country removals. These concerns raise questions concerning if the DHS is committing human rights violations, and if so, how the United States may be held accountable for its actions.

Third Country Removals

Third country removal refers to “any case in which the government sends someone to a country that is not the country in which they lived prior to arriving in the United States, nor a country of which they are a citizen or a national.”[3] In the U.S., it is illegal to deport a person to a country in which they are likely to be persecuted or tortured.[4]

The International Criminal Court

The International Criminal Court (ICC) is an international tribunal that “holds countries accountable for the “gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.”[5] There are two crimes under the ICC’s jurisdiction that the U.S. could potentially be charged under for conducting unlawful third country removals; Article 7(1)(d), unlawful deportation or forcible transfer of population (designated as a crime against humanity) and Article (7)(i), enforced disappearances of persons (also designated as a crime against humanity).[6] The elements of Article (7)(i), unlawful deportation or forcible transfer of population are: “(1) the perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts; (2) such person or persons were lawfully present in the area from which they were so deported or transferred; (3) the perpetrator was aware of the factual circumstances that established the lawfulness of such presence; (4) the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and (5) the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”[7]

The elements of Article 7(1)(i), enforced disappearances of persons, are: “(1) The perpetrator: (a) arrested, detained, or abducted one of more persons; or (b) refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons; (2)(a) such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such persons; or (b) such refusal was preceded or accompanied by that deprivation of freedom; (3) the perpetrator was aware that: (a) such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) such refusal was preceded or accompanied by that deprivation of freedom; (4) such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization; (5) such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization; (6) the perpetrator intended to remove such person or persons from the protection of law for a prolonged period of time; (7) the conduct was committed as part of a widespread or systematic attack directed against a civilian population; (8) the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack direct against a civilian population.”[8]

Currently

As it stands now, there is no way for the United States to be adequately held accountable for human rights violations; the United States is not a party to the International Criminal Court, and has been cautious to being held accountable by the Court (although the U.S. did sign the Rome Statute, but never ratified this signature).[9] For these reasons, it would be difficult for the ICC to hold the United States accountable. However, the U.S. could be sanctioned by the ICC for committing crimes against citizens on the soil of any of the ICC’s member states, clearing a pathway for a potential means of investigation and prosecution when it comes to third country removals.[10] The U.S. has been conducting a significant increase in third country removals under the Trump Administration; the Trump Administration has partnered with several countries, such as El Salvador, where there are significant human rights concerns to conduct third country removals.[11] These actions fulfill the elements of the two crimes against humanity as outlined by the ICC, emphasizing the need for the international tribunal to take action.[12]

Through the International Criminal Court’s (ICC) power to prosecute crimes against humanity, the United States should be held globally accountable for human rights violations carried out by the Department of Homeland Security and deportation against non-citizens.[13] Although potentially extreme, these violations of human rights must be taken seriously and held to the highest extent of the law.

[1] See Eunice Esomunu, Humera Lodhi, and Calvin Woodward, Tracking Trump’s presidential promises, ASSOCIATED PRESS (Dec. 3, 2025, 4:51 PM), https://apnews.com/projects/trump-campaign-promise-tracker/ (tracking the statuses of various campaign promises made by President Donald Trump).

[2] See New Milestone: Over 2 Million Illegal Aliens Out of the United States in Less Than 250 Days, DEPARTMENT OF HOMELAND SECURITY (Nov. 17, 2025), https://www.dhs.gov/news/2025/09/23/new-milestone-over-2-million-illegal-aliens-out-united-states-less-250-days (reporting on the statistics related to mass deportations under the Trump Administration).

[3] See What are Third Country Removals? Understanding Their Use in U.S. Immigration Policy, AMERICAN IMMIGRATION COUNCIL (Dec. 5, 2025), https://www.americanimmigrationcouncil.org/fact-sheet/what-are-third-country-removals-factsheet/ (explaining the history, laws, and current processes of third country removals in the United States).

[4] Id. 

[5] About the Court, INTERNATIONAL CRIMINAL COURT (accessed Jan. 21, 2025), https://www.icc-cpi.int/about/the-court.

[6] See INTERNATIONAL CRIMINAL COURT, ELEMENTS OF CRIMES (2011), at Art. 7(1)(d), 7(1)(j), (listing the various crimes defined and prosecuted by the International Criminal Court).

[7] Id. at Article 7(1)(d).

[8] Id. at Article 7(1)(i).

[9] See Caleb Wheeler, Strange Bedfellows: The Relationship between the International Criminal Court and the United States, 14 Wake Forest J. L. & Pol’y 35, 39 (2024) (explaining that despite President Clinton’s enthusiasm for the ICC, the jurisdictional complexities created by the Rome Statute’s Art. 12 ultimately led to the United States not signing on).

[10] See Q&A: The International Criminal Court and the United States, HUMAN RIGHTS WATCH (Sept. 2, 2020, 12:00 AM), https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states (explaining the relations between the United States and the International Criminal Court).

[11] AMERICAN IMMIGRATION COUNCIL, supra note 3.

[12] INTERNATIONAL CRIMINAL COURT, supra note 6.

[13] See U.N. General Assembly, Universal Declaration of Human Rights, G.A. Res. 217(A) III, U.N. Doc. A/810 at 71 (1948) (setting a basis for basic human rights and the need for violations to be recognized and held accountable).