States of exception, human rights, and social harm: Towards a border zemiology
| Author | Francesca Soliman |
| DOI | 10.1177/1362480619890069 |
| Published date | 01 May 2021 |
| Date | 01 May 2021 |
| Subject Matter | Articles |
890069TCR0010.1177/1362480619890069Theoretical CriminologySoliman
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Article
Theoretical Criminology
2021, Vol. 25(2) 228 –248
States of exception,
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DOI: 10.1177/1362480619890069
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social harm: Towards
a border zemiology
Francesca Soliman
University of Edinburgh, School of Law, UK
Abstract
Crimmigration, that is, the merging of criminal and migration law, is receiving increasing
attention within criminology. However, while crimmigration widens our understanding
of coercion and punishment, it is a reductive lens through which to make sense of
migration control. This article comprises three parts: first, I critique the concept of
crimmigration, its conceptual foundations, and its methodological limitations. Second,
I explore how migration control practice transcends both the state’s territory and
sovereignty, using the example of the European Union’s policy of non-assistance, and
argue that this policy evidences the need to move beyond crime-based categories in
favour of a social harm-based approach. Lastly, I propose a zemiological methodology
for the study of migration control, based on a critical realist view of society and building
on Nancy Fraser’s idea of social justice. The resulting framework provides a coherent
and empirically useful tool for the study of border-related harms.
Keywords
crimmigration, deaths at sea, state crime, zemiology
Introduction
State borders have undergone radical transformations since the end of the last world war,
and migration management appears to have increasingly merged with crime control (Aas,
2011). The subsequent amalgamation of penal and administrative practices represents a
Corresponding author:
Francesca Soliman, University of Edinburgh, School of Law, Old College, South Bridge, Edinburgh,
EH8 9YL, UK.
Email: francesca.soliman@ed.ac.uk
Soliman
229
new challenge for criminology, as emerging control assemblages redefine sovereign
power (Bosworth, 2008). Crimmigration control practices such as migration detention
have been conceptualized as spaces of exception to criminal law, where the state can exer-
cise discretionary control with impunity and suspend the person’s legal rights (Agamben,
2005). This conceptualization, however, overemphasizes the state’s power to control and
exclude non-citizens, while underestimating the role of supranational and transnational
forces in determining migration policies. While crimmigration provides a precious contri-
bution to criminology’s understanding of penal power and the purpose of criminal justice,
its contribution to the study of migration is more limited. In examining migration control
through a crime control lens, scholars risk squeezing global issues within the reductive
frame of the nation state.
In this article I explore the limits of adopting a criminological framework to study
migration management by putting forward an example of extra-jurisdictional migration
control. Over the last few years, EU-level migration policy has exploited jurisdictional
limitations along the Mediterranean border to scale back search and rescue efforts in order
to evade international law obligations, putting sea-crossers’ lives at risk. I argue that crim-
inology lacks the needed methodological tools to make sense of this kind of control pol-
icy, and I suggest that a zemiological (i.e. social harm-based) approach may be preferable
to make sense of migration control in a global world. In the final section of this article I
propose a coherent methodological model upon which a zemiological framework should
be built in order to widen our understanding of migration and border control.
Border control and states of exception
Law and border
During the last few decades the construction, function, and control of state borders in the
western world have undergone profound transformations (Rumford, 2006). Once a fixed
geographical feature inextricably linked with the state’s sovereignty and territorial integ-
rity, borders are increasingly mobile and embedded through society, and their enforce-
ment is entrusted to a complex network of cooperation among state and non-state actors
(O’Dowd, 2002; Rumford, 2006). While progressively demilitarized, borders have
become increasingly policed and managed through crime control (Bosworth and Guild,
2008; Campesi, 2015b). This in turn has fed a widening security discourse within which
overlapping insecuritizations such as fear of crime, terrorism, and economic uncertainty
have converged on the figure of the migrant (Bigo, 2000).
It has been argued that presenting border-related concerns as part of the security con-
tinuum allows the state to frame migration control as a form of crime prevention (Bigo,
2002). The framing of migration through a criminal lens exemplifies what Pratt and
Valverde (2002: 135) have called ‘hybrid governance’, where different social issues and
public concerns are merged to create a new tool of governance. This hybrid governance
has brought to the rise of crimmigration, that is, the pervasive blurring of boundaries
between criminal law and migration law. Crimmigration creates a hybrid legal framework
where administrative coercion, presented as necessary and justified to maintain security,
can be adopted without requiring the individual safeguards normally built within criminal
230
Theoretical Criminology 25(2)
proceedings (Aas, 2011; Bosworth and Guild, 2008; Sklansky, 2012; Stumpf, 2006).
Migration law affords state agents wide discretionary powers to apprehend, detain, and
eventually expel foreign citizens, even without evidence of criminal behaviour or breach
of migration rules, but based on loosely defined security concerns (Aas, 2014). As the
crimmigration control system can subject non-citizens to ad hoc legal processes that are
more likely to result in less favourable outcomes, it has been argued that fundamental
principles underpinning criminal law such as presumption of innocence or right to trial are
better understood as being reserved to the citizens of the state (Guild, 2007; Stumpf, 2013;
Zedner, 2013).
Despite the higher likelihood of more restrictive outcomes, the crimmigration control
system does not appear to be linked to penal populism or higher levels of punitiveness,
but rather has established itself as a routinized form of governmentality now widespread
throughout Europe (Aas, 2014). The securitization of migration may thus not be a simple
show of force or legal authority by the state, but rather be better understood as a mani-
festation of the state’s prerogative to make exceptions to the law; in this case, criminal
law. By suspending the rights of part of the population, the state would thus exercise the
concept of sovereignty theorized by philosopher Giorgio Agamben (1995, 2005), who
defines sovereign power as the ability to legally suspend the law by establishing when it
should and should not be applied. This prerogative to strip individuals of their political
rights and reduce them to what Agamben calls ‘bare life’ would then manifest itself in
migration detention centres, and in the high level of exclusionary discretion that charac-
terizes border control (Agamben, 1995; Salter, 2008).
The fiction of bare life
Bare life is best described by Hannah Arendt in her account of the statelessness of Jews
persecuted in Europe before the Second World War, whose status put them outside of the
recognition of the law. Exclusion from the law constituted such a comprehensive depri-
vation of rights to make criminalization a more desirable option, as breaking the law
would have brought the individual back within its remit and thus under its protection
(Arendt, 1958). According to Agamben (1995, 2005), the ability to reduce individuals to
bare life is central to sovereign power, as it reinforces and normalizes its prerogative to
make exceptions to the rule of law. Bare life should not be understood as the literal
description of an animalistic natural state, but rather as a performance: it is the symbolic
act of stripping the person of their political rights that reaffirms sovereignty, much like a
successful degradation ceremony reaffirms a denouncer’s embodiment of the communi-
ty’s collective values (Garfinkel, 1956). Bare life is a fiction produced by the sovereign
power itself, and it is functional to its governmentality.
The link between migrants and bare life is put forward by Agamben himself. In
Agamben’s view, the public spectacle performed by immigration detention centres repre-
sents the state’s ultimate exercise in exclusionary supremacy, and is a clear manifestation
of the state of exception (Agamben, 1995; Owens, 2010). However, detention centres are
not sites of absolute state control. While immigration detention may be considered a legal
anomaly (Campesi, 2014), the idea that it represents a literal legal vacuum where detain-
ees’ political power is systematically annihilated has been refuted by empirical research.
Soliman
231
For example, Bosworth (2013) points out that UK detention centres may be sites of exclu-
sion and poor oversight, but they are also sites of resistance and solidarity. Similarly, in his
ethnography of Italian detention centres, Campesi (2015a) finds that the effective state of
anomie in which detainees are kept by authorities effectively decreases control and
...
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