government

John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

/ Alina Utrata / 3 Comments
John_Bolton_(33024357411)

US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

Continue reading →

Nationwide Class Action in the U.S. Protects the Right to Seek Asylum

/ Lindsay M. Harris / 1 Comment

A Seattle-based federal court has stepped in to protect the right to seek asylum, deciding in favor of a nationwide class constituting thousands of asylum-seekers in a case with important implications for the Trump administration’s recently-announced quota policy for U.S. Immigration Courts. On March 29, 2018, Chief U.S. District Judge for the Western District of Washington Ricardo S. Martinez issued an 18-page order granting the plaintiffs’ motion for summary judgment in the Mendez Rojas v. DHS case. Judge Martinez’s forceful decision shores up the due process rights of asylum-seekers under the Fifth Amendment to the U.S. Constitution and statutory rights grounded in the federal Immigration and Naturalization Act and Administrative Procedure Act, as well as protections enshrined in international refugee law more broadly.

The named plaintiffs in the suit are asylum seekers from Guatemala, Honduras, Mexico, and the Dominican Republic. Collectively, they stand in for two classes of individuals certified by the Court last year, those who declared a fear of return to their home countries and have undergone a credible fear interview and been released to pursue their asylum claims, and, second, those released without first undergoing the credible fear interview. None of the named plaintiffs received notice of the one-year filing deadline or a meaningful mechanism to timely file their asylum applications. Asylum seekers must file their asylum applications within one year in order to receive asylum protection.

The class action lawsuit, brought by counsel from the American Immigration Council, Northwest Immigrants Rights Project, and Dobrin & Han, PC, included asylum seekers released from detention who are in removal proceedings in immigration court and who have yet to be placed into removal proceedings and who were not given notice of the one-year filing deadline to apply for asylum.

The Court agreed with the plaintiffs that the lack of notice to asylum seekers violates the congressional intent behind the one-year filing deadline. Created by Congress in 1996, the one-year filing deadline was ostensibly designed to guard against fraudulent asylum claims. The law’s most ardent supporters, however, made clear that the implementation of the deadline should not impede protection for genuine asylum-seekers. During discussions on the Senate floor, for instance, Sen. Orrin Hatch (R-Utah) stated:

Like you, I am committed to ensuring that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies. If the time limit is not implemented fairly, or cannot be implemented fairly, I will be prepared to revisit this issue in a later Congress.

The Court also relied on U.S. Supreme Court precedent, specifically Mullane, noting that procedural due process requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In this case, the Court found that the publically available DHS documents discussing the one-year filing deadline were not reasonably calculated to provide adequate notice to the asylum-seeking plaintiffs. The Court note that some of the asylum seekers in the class believed they had actually applied for asylum by virtue of undergoing a credible fear interview, in which they explained their fear of return to their home country in great detail to a USCIS asylum officer.

The Court also highlighted the problems caused by informing someone that they will be instructed on how to apply for asylum in court in the future, while the court dates referenced often take place well beyond the one-year filing deadline imposed. My 2016 article in the Wisconsin Law Reviewexamines the problems at the intersection of our burgeoning immigration court backlog and the one-year filing deadline in greater detail.

Judge Martinez signaled his sympathy regarding the extreme vulnerability of asylum-seekers, grounding his decision in the fact that “many class members have suffered severe trauma, do not speak English, are unfamiliar with the United States’ complicated immigration legal system, and do not have access to counsel.”He went on to conclude that DHS’ failure to provide adequate notice is a violation of the Due Process Clause of the U.S. Constitution.

Responding to DHS’ argument that the Court owed deference to agency “procedure,” the Court stated simply, “no deference is owed to procedures that violate a statute or the Constitution.” Currently, there is a ping pong back and forth between the agencies overseeing the asylum process. Until a Notice to Appear is filed with U.S. Immigration Court, the court will not accept an asylum application. If a case appears likely to be headed for a court appearance, however, USCIS, which includes the asylum office, routinely denies jurisdiction. There is currently no actual deadline for ICE to file a Notice to Appear with immigration court, leaving asylum-seekers and attorneys in limbo and unable to meet the deadline–a “technical deficiency” in the purest sense.

Importantly, while declining to reach the constitutional argument for a meaningful application mechanism, the Court found that defendants’ failure to provide a uniform mechanism by which an asylum-seeker could actually timely apply for asylum, assuming she gained knowledge of the deadline, violated the asylum statute and the Administrative Procedure Act. The Court concluded by ordering DHS to provide notice of the one-year filing deadline to class members who have already been released. Further, Judge Martinez ordered that DHS give notice to future asylum-seekers prior to or at the time of release them from detention. DHS is also required to adopt and publicize uniform procedural mechanisms to ensure class members can timely file their asylum applications. Implementation and the reception from immigration judges nationwide to the decision remains to be seen. Already, advocates shared a report of a judge at the Arlington immigration court refusing to enter the Mendez Rojas decision into the record because he stated that the Executive Office for Immigration Review is not bound by the Administrative Procedure Act.

Assuming implementation is successful, this decision represents a win for asylum-seekers and brings greater clarity and organization to an already-overwhelmed and backlogged immigration court system. Judge Martinez’s order represents yet another instance in which the federal courts have intervened in administrative confusion to ensure constitutional due process and justice for immigrants. The decision is a step forward in upholding American values and adhering to our domestic and international legal obligations to protect refugees from return to countries where they would face a threat to their life or freedom.