The New Impunity: Border Violence as Crime

Abstract

As the violence of borders has increased since the beginning of the century, advocates have started to employ the language of anti-impunity. This new discourse aims to frame border violence as a crime, often as a mass atrocity. This article is the first to identify and critically assess this type of response. It offers a comparative multi-regional analysis to assess the turn to criminal law as it has figured in attempts to enforce the rights of refugees and migrants. After defining the anti-impunity project, the article analyzes anti-impunity in the context of migration to Australia, Europe, and United States. It then proceeds to evaluate this trend in light of recent literature, which has been critical of anti-impunity and “the turn to criminal law” in human rights. Critics of anti-impunity have argued, in the context of a broad range of human rights campaigns, that the criminal law vocabulary diverts attention from underlying structural issues, including economic inequality. This article presents a defense of the criminal law framing of border violence, as one instrument within a broader toolbox of strategic litigation, and of trans-formative political action. I argue the atrocity framing, common to contemporary progressive movements around the world, is an attempt to employ criminal law to counter violence rooted in global inequality.