ISCI is a cross-disciplinary research centre working to further our understanding of state crime: organisational deviance violating human rights

Refugees and state crime: a developing paradigm

In September 2010, detainees at the Darwin immigration detention centre in Australias Northern Territory mounted two separate series of protests. The first involved a group of Indonesian nationals under investigation for people-smuggling offences and seeking to return to Indonesia. Mostly, those involved were fishing boat crew members who had been detained for up to one year while the Australian Federal Police and prosecution authorities decided whether to proceed with criminal charges. If that happens and the detainees are ultimately convicted, they face grossly disproportionate mandatory prison sentences of at least five years. The second protests involved Afghan asylum seekers, who had originally been detained on Christmas Island, 1200 kilometres off Australias north west coast, after seeking entry to Australia by boat. Frustrated about the delays in processing their claims and fearful of being returned to the danger and chaos of occupied Afghanistan, a group of them managed to break out of the centre and engage in a peaceful sit-down protest across the road from the main entrance. In both cases, the authorities condemned the protests and threatened those involved with criminal charges. Some of the Afghans were also forcibly moved to another remote detention centre on Australias north west coast.

These events provide a neat snap-shot of the Australian states response to unauthorised refugees. Since 1992, all unauthorised non-citizens have been subject to indefinite mandatory detention in prison-like institutions. This policy was introduced supposedly to deter refugees from seeking unauthorised entry and was the start of a process that elevated people-smuggling to an offence attracting maximum penalties of 20 years . The overlapping criminalisation of refugees and those who assist them has been pursued in a vigorous and largely bi-partisan manner by successive Labor and conservative governments committed to making border protection a central feature of national security policy.

In such an environment, the circumstances (including state crime) that force people to flee and seek protection from one of the few signatories in the Asia-Pacific region to the 1951 UN Refugee Convention are denied in official discourse by an elaborate policing response that includes off-shore detention and processing; naval interdiction of Suspected Illegal Entry Vessels; and the joint policing operations with neighbouring states such as Indonesia. Such measures have not stopped forced migration in the region but represent pre-emptive strikes designed to prevent refugees accessing the legal regime supposedly established to protect them. Between 2001 and 2007, this was characterised by the Pacific Solution under which all those attempting unauthorised entry were detained in an Australian funded detention centre on Nauru. Since 2008, unauthorised asylum seekers have been detained on the Australian territory of Christmas Island or in centres on the Australian mainland, but the focus on the policing of people-smugglers remains, with even those who assist refugees for entirely humanitarian reasons now criminalised .

While developments in Australia represent the most draconian end of the spectrum, they reflect the exclusionary trend of Western policy towards forced migration. Overwhelmingly, refugees remain in the developing world (UNHCR 2010), often warehoused for years in temporary camps from which forced repatriation is a more likely outcome than resettlement in the West (USCRI 2009). Their ability to access states that have formal refugee protection procedures is severely constrained by the emergence of three Western exclusion zones based around Australia, North America and the European Union (Green and Grewcock 2002; Grewcock 2009). While each has its own local peculiarities, these zones represent a common strategic response to instability and crisis; and provide Western states with an ideological, territorial and enforcement framework for the identification, control and exclusion of forced and illicit migrants, through measures that systematically violate their human rights. In this context, border policing has become a central mechanism by which Western state institutions and agencies seek legitimacy through exclusion and racism (Fekete 2004 and 2009; Grewcock 2003).

For some years, writers on forced migration have identified the tensions between the formal human rights commitments of Western states and their treatment of refugees (for example, Andreas and Snyder 2000; Kushner and Knox 2001; Kyle and Koslowski 2001; Marfleet 2006). The human costs of these tensions include a mounting death toll as those seeking entry take greater risks to evade border controls (Fekete 2003; Kevin 2004; Michalowski 2008; Weber 2010). Similarly, human rights organisations have highlighted the abusive impact of detention and other border policing measures (for example, AHRC 2009; HREOC 1998 and 2004; UNHCR 2002; USCRI 2009). In Australia, this has included particularly egregious abuses of children in detention; extensive evidence amongst detainees of mental illness arising from or exacerbated by violence and neglect; and a culture of containment that resulted in the unlawful detention of 247 Australian residents between 1993 and 2007 (Grewcock 2009).

Criminologists, particularly in Australia, have drawn on such material to develop critiques of the systemic nature of these abuses and to identify them as forms of state crime (Green and Grewcock 2002; Grewcock 2009; Pickering 2005). These studies emphasise that rather than being the product of errant individuals, state criminality arises from a complex set of state policies and practices that are formulated by parliament and the Executive; declared constitutional by the Judiciary; implemented by a range of policing, regulatory and welfare agencies; and legitimised by recourse to deeply entrenched, often racist, fears of the Other (Grewcock 2009; Pickering 2005; Poynting et al 2004). In this context, the three main dimensions to state crime are the alienation, criminalisation and abuse of unauthorised migrants. Moreover, the deviance by which state crime can be defined arises not just from breaches of formal human rights obligations but from the forceful denial by the Australian state of the legitimate expectations of unauthorised migrants to free movement and protection (Grewcock 2009).

At the time of writing, a minority Labor government has just taken office following a federal election campaign in which stopping the boats was a prominent theme. The Labor Party is seeking to establish an off-shore detention centre in a neighbouring state such as East Timor, while the opposition conservatives have pledged to re-open the centre on Nauru. In such an unstable political situation, defending unauthorised refugees against ongoing deviant behaviour by the Australian and other Western states remains a conceptual and practical challenge for criminologists and others concerned with the human rights of forced migrants.

Notes

1. SS 73.1-73.3A Commonwealth Criminal Code

2. S 233A Migration Act 1958

References

AHRC (Australian Human Rights Commission) (2009) Immigration Detention and Off-shore Processing in Christmas Island, Author, Sydney.

Andreas, P and Snyder, T (2000) Border Games: Policing the US-Mexico Divide, Cornell University Press, New York.

Fekete, L (2003) Deaths at the Border who is to blame?, Institute of Race Relations, available at http://www.irr.org.uk/2003/july/ak000012.html, accessed 10 September 2010.

Fekete, L (2004) Anti-Muslim Racism and the European Security State, Race & Class, Volume 46, No.3.

Fekete, L (2009) A Suitable Enemy: racism, Migration and Islamophobia in Europe, Pluto Press, London.

Green, P and Grewcock, M (2002) The War Against Illegal Immigration, Current Issues in Criminal Justice, Volume 14, No.1.

Grewcock, M (2003) Irregular Migration, Identity and the State the Challenge for Criminology, Current Issues in Criminal Justice, Volume 15, No.2.

Grewcock, M (2009) Border Crimes: Australias War on Illicit Migrants, Institute of Criminology Press, Sydney.

HREOC (Human Rights and Equal Opportunities Commission) (1998) Those Whove Come Across the Seas: Detention of Unauthorised Arrivals, Author, Sydney.

HREOC (2004) A Last Resort? National Inquiry into Children in Immigration Detention, Author, Sydney.

Kevin, T (2004) A Certain Maritime Incident: the sinking of the SIEV X, Scribe Publications, Melbourne.

Kushner, T and Knox, K (2001) Refugees in an Age of Genocide, Frank Cass, London.

Kyle, D and Koslowski, R (eds) (2001) Global People Smuggling: Comparative Perspectives, The John Hopkins University Press, London.

Marfleet, P (2006) Refugees in a Global Era, Palgrave MacMillan, Basingstoke.

Michalowski, R (2008) Border Militarization and Migrant Suffering: A Case of Transnational Social Injury, Social Justice, Volume 31, No. 5.

Pickering, S (2005) Refugees and State Crime, The Federation Press, Sydney.

Poynting, S, Noble, G, Tabar, P and Collins, J (2004) Bin Laden in the Suburbs: Criminalising the Arab Other, The Institute of Criminology and Federation Press, Sydney.

UNHCR (United Nations High Commissioner for Refugees) (2002) Human Rights and Immigration Detention in Australia, Author, Geneva.

UNHCR (2010) 2009 Global Trends, UNHCR Division of Programme Support and Management, Geneva.

USCRI (United States Committee for Refugees and Immigrants)(2009) World Refugee Survey 2008, Author, Washington D.C.

Weber, L (2010) Weber, L Knowing-and-yet-not-knowing about European border deaths, Australian Journal of Human Rights, Volume 15, No.2.

Further reading…

ABC News: Hadi Ahmadi gets minimum four years for people smuggling (24/09/2010) http://www.abc.net.au/pm/content/2010/s3021541.htm

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