Transnational crime and refugee protection.

• Date: 22 June 2007
• Author: Pickering, Sharon
• Published date: 22 June 2007
• Author: Pickering, Sharon

DURING THE COLD WAR, THOSE SEEKING ASYLUM IN THE GLOBAL NORTH WERE able to access protection that aligned with the geopolitical priorities of wealthy Western nations. Since that time, countries of the global North have been increasingly uncomfortable with irregular migration from the global South. Simultaneously, what were once matters for geopolitical relations and foreign policy are increasingly considered matters of crime and security (Edwards and Gill, 2002b). Concomitantly, the criminal justice complex has enthusiastically embraced irregular border crossing as a preeminent form of transnational crime. Swallowed up in this embrace has been a historically privileged group of border crossers--asylum-seekers.

The kinds of cross-border mobility required to seek refugee protection now routinely fall under the rubric of the Convention on Transnational Organized Crime, rather than the Convention Relating to Refugee Status (Refugee Convention). This article will chart the ideological discourses that are broadening and changing forms of insecurity related to forms of mobility associated specifically with seeking refugee protection. Then it briefly documents the meshing of forced migration with transnational crime. It examines two predominant narratives of transnational crime in relation to refugee protection by considering the extent to which such narratives obfuscate important trends in relation to discourses of rights, changing conditions of sovereignty, and de-territorialized policing practices. The article concludes that due to the discursive (and otherwise) intertwining of transnational crime and refugee protection, we know less about the causes of forced migration and possible long-term solutions. This also legitimizes the already imprecise and opportunistic category of transnational organized crime. Refugee protection must be critically reintroduced into a debate on transnational crime that has been debased by the merging of human smuggling and transnational crime, an approach that trumps any discussion of persecution and protection.

From Refugee Protection to Transnational Organized Crime

In the wake of the World War II, before the development of the Refugee Convention, Hannah Arendt (1966: 286) wrote that classifying the refugee as a criminal afforded greater legal protection: "Since he was the anomaly for whom the general law did not provide, it was better for him to become an anomaly for which it did provide, that of the criminal."

The criminalization of refugees, which Arendt believed would give stateless peoples recognition, has indeed increased, but not to the benefit of those seeking protection. The criminalization of refugees can be traced throughout different periods following the Second World War, gaining greater traction often by depicting individual refugees as deviant and therefore undeserving of state protection (Pickering, 2001).

Contemporary criminalization discourses increasingly view forced migration as an instance of transnational crime, rather than individual deviance. Instead of seeking deviant "migration outcomes," those seeking asylum are now considered integral to the illicit movement of people. Arguably, as discourses of refugee deviance developed in the late 1990s, clear discourses linking transnational criminality and forced migration emerged. Whereas the criminalization of refugees could be identified as primarily media driven, the intermeshing of forced migration and transnational crime has largely been driven by national, international, and interregional policy maneuverings. Governments of the global North routinely reduce forced migration to human smuggling, which in turn is considered another example of transnational crime. This is often located on a continuum with drug trafficking and the movement of illicit goods across borders, with little detailed discussion as to the extent or nature of the similarities or differences between these forms of cross-border movement. In turn, people smuggling is now primarily a matter for border policing efforts that result in the refugee being primarily dealt with as a policing matter. This echoes the post-World War II moment, before the development of international legal mechanisms and processes, in which:

The nation-state, incapable of providing a law for those who had lost the protection of a national government, transferred the whole matter to the police.... Its strength and its emancipation from the law and government grew in direct proportion to the influx of refugees (Arendt, 1966: 287). Although an imperfect legal mechanism, the development of the Refugee Convention was seen primarily as a humanitarian initiative of the international community following World War II that enabled a reasonably receptive human rights interpretation. Since its introduction, refugees forced to flee their homelands have sought sanctuary using the Refugee Convention, related international instruments, and regional agreements developed under its umbrella. Forced migration has been predominantly understood as a matter of "humanitarian" concern (Goodwin-Gill, 1996) related to, but not primarily defined by, a human rights or justice-based claim. However, the discursive demarcation of the refugee in the international landscape has shifted considerably. This has widespread ramifications for the changing categorization of those seeking protection and the associated expectations for state responses (see Arendt, 1966).

Various elements of the Refugee Convention are important in terms of transnational crime. Being forced to flee across borders is integral to accessing refugee protection and is embodied in the international definition of the refugee. The Refugee Convention clearly recognizes that while flight from persecution may reasonably involve unlawful activity, this should not compromise an application for protection (Article 31). However, many states increasingly find the provisions of the Refugee Convention too restrictive as they seek to deter and reject those seeking protection under its auspices. The approach many states have adopted toward refugees increasingly finds greater synergy with newly developed mechanisms to counter transnational crime. In short, forced migration is now by default first understood as a policing matter of transnational crime, and second as a matter for the Refugee Convention, with its emphasis on humanitarianism and protection. This can be seen through its ready absorption into the predominant narratives of transnational crime.

Narratives of Transnational Crime

It has been suggested that there are two predominant narratives of transnational crime informed by what Edwards and Gill (2002a) have labeled "criminologies of the other" and "criminologies of the self." I intend to trace how issues of refugee protection and forced migration feed into these narratives and to discuss how adequately they account for high levels of policy activity that subsume refugee protection within transnational organized crime.

External Threat

Dominant narratives of transnational crime have centered on the "external threat" such crimes pose to the nation. Critically, the threat to national security is understood to originate from outside the nation-state (represented as vulnerable and victimized) and is identifiably ethnic or has national characteristics. Within this narrative, transnational crime is an objective event and official responses are rendered matters of common sense. There is little doubt that discourses surrounding asylum-seeking and forced migration are predominantly understood within this transnational crime narrative.

The global North has invested heavily in the depiction of asylum-seekers as acting upon legitimate society from outside. This is underpinned by the belief that reasons for forced migration reside outside the nation-state and are unrelated to the foreign policy and trade interests of countries of asylum. Therefore, unauthorized arrival is considered increasingly illegitimate and illegal (Pickering, 2001). This narrative disconnects the asylum-seeker from legitimate society and primarily locates them within illicit criminal markets and activities used to journey to a place where a protection application is possible. The focus on an external threat depends on a preoccupation with the nature of the journey, rather than with the persecution necessitating the migration. The external threat narrative of transnational crime assumes an unambiguous disconnect between the licit and illicit markets that assist those seeking asylum, when it is at best unclear.

Within this narrative, asylum-seekers are considered an alien group with no connection to the body politic or to the cultural or social mores of the nation in which they seek asylum. Cultural fear of alien groups fuels suspicion of racial and ethnic others (Burke, 2001). This routinely feeds into depictions of dangerousness, reinforcing historical tropes of "us" and...