Border Justice in the Age of Pandemic

At a high level of generality, the premise of border justice is simple: when we work to eliminate the extreme and illegal violence that governments use to enforce national borders, we do not only help achieve legal accountability, but also work towards global justice. Consider what it would mean for governments to take brutal border violence off the table as a policy option. Without such border violence, governments would have to deal with those seeking protection and opportunity in a fairer and more sustainable way. This could force them to confront more equitably such problems as global poverty, war, and climate change. In other words, border justice is not only a rule of law agenda, it also aspires to address larger issues of global structural inequality.

John Washington writes in his beautiful new book:

A diverse array of agents—economic impossibility, the climate crisis, plus armed sicarios, government goons, and rivalrous gang members—are uprooting millions of people across the globe, rendering them homeless and pushing them to flee across borders. Asylum protocols are not the solution to these complex global problems, but they are a solution to the individuals suffering them (p. 213).

The paragraph captures the basic rational behind asylum law, but the border justice agenda is different. Despite the clear distinction Washington suggests between “individuals suffering” and “complex global problems,” the border justice agenda begins from a rather different intuition: addressing these individual problems consistently and strategically is a key way of indirectly pushing policymakers to address global ones, where inaction and convoluted international bureaucracy is often the norm.

At the precipice of an unprecedented pandemic, in early April, the German Law Journal published a volume Cathryn Costello and I co-edited, dedicated to issues of border justice. We aimed to gesture not only towards a research program, but also toward a shared legal-political agenda. But the onset of the COVID-19 pandemic immediately threw into question many premises of this research and action program. A few months in, it seems an update to the agenda is due.

What is Border Justice?

The underlying premise of our concept of “border justice” is that lawsuits and legal campaigns can make it more difficult for governments to use extreme violence in attempting to seal their borders. These lawsuits must, of course, be timed carefully and select their fora in a sophisticated way, often considering multiple jurisdictions. As Ioannis Kalpouzos explains, when we investigate and seek transparency surrounding illegal border policies – sometimes even revealing them as crimes against humanity – we can deter governments from continuing the underlying policies.

Such campaigns may thus indirectly push governments to adopt more sustainable border policies. If they want to protect their reputations, governments can, for example, expand visas for legal migration, or help build opportunities back home for those seeking better lives. The hope is that migration stemming from societies with greater economic independence prevents many of the social problems that come with unauthorized migration.

To be sure, the discourse of “root causes” is problematic and offers no quick fixes. For one thing, building opportunities at home will not surely decrease and may even increase the appetite for migration. Perhaps more importantly, border justice campaigns aim to build on the modes of resistance and agency that globally disadvantaged people themselves employ in order to advance their own interests and those of their communities.  According to this view, in moving, migrants and refugees exercise a certain kind of struggle for liberation; one that Tendayi Achiume has framed in de-colonial terms.

Since many unauthorized border crossers come from very poor backgrounds, the net result of such activity is greater distribution of resources across the planet. As Ayelet Shachar has stressed, movement itself is a form of property that is unequally distributed. If that is true, then taking advantage of existing movement capacities and stretching them as far as possible is key. For years, civil society and United Nations actors have been calling for greater global wealth redistribution initiatives. But as U.N. Special Rapporteur on extreme poverty and human rights Philip Alston has recently shown, such policies have been an utter failure in mitigating global inequality. As a general program, border justice assumes that it is better not to rely only on the good will of rich governments. It’s sometimes more helpful to support those who are trying to transform their own lives and the lives of their loved ones – here and now. That is precisely what people on the move try to do, even as some brand them as “illegals.”

Backlash Escalates

In recent years, the legal program of border justice in support of migrants has constantly been under pressure. This attitude is captured in the words of current Prime Minister of Australia, Scott Morrison, who responded to an attempt to hold the Australian government accountable for torturing migrant detainees by saying that Australia “will not be intimidated by attention-seeking advocates.” Indeed, it seemed like the more colleagues within the border justice agenda have tried to shame world governments into living up to their legal obligations toward those in need, the more their responses became shameless.

When he wrote his groundbreaking memoir of his migration detention, one of the things author Behrouz Boochani cared most about was the question “Will people understand systematic torture?” The book was sold across the world, but when the International Criminal Court (ICC) rejected our complaint alleging systematic torture in Australia’s offshore detention facilities, the Office of the Prosecutor declined to invite Boochani as a witness. The dynamic is so blunt, it may even suggest a kind of underlying commitment of the international community to allow such violence as part of a system (similar to the commitment that political theorist Hagar Kotef conceptualized, though in a different context, as “violent attachments”).

And this pattern, of course, was not only Australian. It emerged everywhere on the fault-lines between “developed” and “undeveloped” countries, where immigration detention in inhumane conditions became a common deterrent. For example, my own country, Israel, adopted a policy of indefinitely detaining migrants; while, during the Obama era, the United States began separating children from their parents, or started holding migrants in intentionally frozen cells, or used involuntary sedation in migrant detention centers.

Border Justice in the Times of Pandemic

With the onset of the COVID-19 pandemic, the backlash of governments against migrants became a full-on attack. In Greece, asylum seekers are pushed into tent-shaped rafts, originally designed for rescue, and sent adrift with no way to steer. This campaign may be the bluntest and most systematic assault on the law of asylum in Europe, at least since the beginning of the “refugee crisis” in 2015. Off the shores of Australia, these violent methods now include robotic deportation equipment set at sea.

Some people may think of the number of drownings in the Mediterranean – which reached a low since the International Organization for Migration (IOM) started counting in 2014 – as a kind of silver lining. Compelling as such an emphasis on lives lost and saved may be, it is misleading. For they are mainly a factor of new measures of immobility imposed everywhere. What IOM numbers also reveal is that “more than half of the over 6,200 people returned to Libya this year – which includes at least 264 women and 202 children – remain unaccounted for after being loaded onto buses and driven away from the disembarkation points on the coast.”

What, then, about the research and action program of border justice? In the shadow of the pandemic, it seems all but dead. Is there any hope that lawyering on behalf of people seeking protection and opportunity can contribute to a fairer world? Global mobility was halted for most. If very few of us will be moving in the foreseeable future, then mobility looks like the wrong place to pursue such an ambitious goal as global justice.

Putting the agenda of border justice to rest is likely, however, a wrong choice to make. For people who have been displaced by civil war, climate induced crises, or dire poverty, staying put is typically not an option. They are forced to move, and are not truly deterred by the risk of COVID-19. As the New York Times recently reported, “Illegal migration along the southwest border of the United States has surged after a period of stagnation, as economic hardship, made worse by the pandemic, has driven thousands northward seeking work.” As another example, several of the refugees I’m in touch with at the outskirts of Europe are now caught in various transit areas in terrible conditions. They will assuredly move at their first opportunity, no matter what legal advice they are given. Perhaps the pandemic can be a pretext to stop them, but it will not become a reason for them to stop.

The initiative we now see in several places, to shut entirely the doors of wealthy countries to asylum seekers, will therefore be a failed policy. If governments insist on shutting the doors forcefully, they will be going down a disastrous route. As climate change and political instability continues to uproot large populations, complete closure is a recipe for regional conflicts. Such “mobility conflicts” are already more and more visible in places such as Libya and Greece’s land border with Turkey. The dynamic of mobility conflicts is much more dangerous for governments than the reputational threats we seek to raise.

After the outbreak of the novel coronavirus, cross-border movement presents new dangers, and nations should, of course, protect the health and safety of their citizens. But cracking down on refugees and forcibly displaced populations is a move in the wrong direction. It shows how under the guise of medical protections, countries aim to achieve entirely different goals. At best, these are understandable (but mostly false) economic protections for their citizens. At worst, states aim to enforce race distinctions: what W.E.B. Du Bois famously called the global “color-line.”

In this regard, the move against migrants and refugees in the wake of the pandemic is a litmus test for governments more generally. If the pandemic can be used as a weapon against migrants, it can be employed in turn against all of us. Trying to board a plane, we now experience barriers that refugees and migrants seeking protection have experienced at least since planes were invented. Internal borders have been erected to limit our every step. As Christopher Szabla observed already this April, “all travelers – even those driving between New York and Rhode Island – now find themselves under suspicion for carrying the [coronavirus].” We have been separated from family, loved ones and dear friends. Some governments have gone extremely far to track our activity online by means that have nothing to do with public health.

Border justice is now also about making sure these steps that apply to all of us do not exceed their crucial health purposes. Although those seeking protection are clearly worse off, we are now all caught, somehow, in a migration limbo.

It would be a mistake, however, to conclude that the border justice campaign has simply dissolved into a much broader civil rights agenda. Of course, civil rights attorneys have worked on movement restrictions of various kinds for a very long time. The unique insight that the border justice agenda brings to the table is the importance of movement as a key aspect of structural inequality, both at the intranational and international levels.

As the dynamics of closure continue, we should push ever more strongly to build a legal and political agenda against violence and discrimination at our borders. The new agenda of border justice confronts not only national borders, but the new borders we all now face. Far from putting an end to the program of border justice, COVID-19 has spread the concern across all of our compartmentalized public spaces.

Image: Migrants walk after crossing the border between the U.S. and Mexico at the Rio Grande river, as they walk in El Paso, Texas, on June 27, 2019 as taken from Ciudad Juarez, Mexico. (Photo by Mario Tama/Getty Images)

 

About the Author(s)

Itamar Mann

Itamar Mann is a Senior Lecturer in Law at the University of Haifa. Follow him on Twitter (@itamann).