Abstract
AbstractShould we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.
Highlights
Should we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders
Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control
As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies
Summary
The regime’s relative youth, its rhetorical excess, and the selectivity of its application have provided ample material for the observation that it has primarily served as a tool against the weak.[36] What is more, when it comes to the targets of investigations and prosecutions at the ICC, the Court’s still predominant geographical focus can be perceived to associate international criminality with the poorer parts of the world, where immigrants come from.[37] the exclusion from refugee status of individuals who have committed an international crime[38] provides an ICL tool in the limitation of the provision of asylum and reinforces the predominant relationship between migration and criminalization. International criminal law is often perceived, with some justification, as eschewing larger questions of inequality or structural violence and elevating narrower and more spectacular types of violence and suffering.[43] Appreciating the social value of transnational migration in our analysis of the violence wielded against migrants can help us investigate whether ICL can go beyond the narrow violence against “bare life.”[44].
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