The Case for Abolishing Border Penality: Rejecting Criminalisation to either Deter or Support Border Crossers 

Guest post by Mattia Pinto. Mattia is a lecturer at York Law School and Centre for Applied Human Rights, and co-programme leader of the LLM in International Human Rights Law and Practice, University of York. Mattia researches and teaches in the areas of human rights, criminal law, social-legal theory, and international law. 

On 19 April 2024, seven years after the investigation began, the Trapani court dismissed the Iuventa case, a symbol of the increasing criminalisation of humanitarian assistance in Italy. The case involved ten humanitarian workers from NGOs Jugend Rettet, Save the Children, and Médecins sans Frontières, charged by the Trapani prosecutor with aiding illegal immigration, as they would have colluded with smugglers during rescue activities in the Mediterranean. The court dropped all charges, declaring the alleged facts non-existent. Migrant advocates, who have long decried Italy’s criminalisation of NGO rescue missions, hailed the decision as a decisive vindication for migrant rescuers. However, the same advocates also support some form of criminalisation in migration matters.  

In the debate around migration, penality is mobilised both to deter and support border crossers: while governments resort to penal measures to oppose border crossings, migrant advocates endorse them to end impunity for abuses against migrants, in a vicious cycle of “border penality”. In this post, building on my recent publication, I argue that the critique of the criminalisation of migrants and their rescuers is at odds with calls for punishment to protect them. I show that efforts to punish border violence reinforce the state’s penal apparatus that targets migrants and those who act in solidarity with them. They reflect and foster “penal antagonism”, where opposing factions seek to use punishment for their own ends, leading to the incarceration of more migrants and foreclosing a more political response to the prevailing anti-immigration climate. 

Criminalisation of migration 

In recent decades, European states have intensified a securitarian approach to irregular immigration. Italy has enforced border closure by both physical means (pushbacks, expulsions, cooperation with the Libyan “coastguard”, and the decision to create offshore detention centres in Albania) and legal measures, including the criminalisation of migration. This antagonistic approach to migration separates citizens, who enjoy rights based on their passport and ethnicity, from racialised non-citizens, who are denied entry, punished, and expelled. 

One method Italy uses to oppose migration is the “criminalisation of solidarity”, primarily targeting NGO rescue missions. Since 2016, Italian prosecutors have conducted criminal investigations to ascertain whether these NGOs collude with smugglers, seizing vessels, arresting crew members, and prosecuting them for aiding illegal immigration. However, as the Iuventa case demonstrates, these prosecutions are often evidentially weak or involve actions that are not criminal offences: out of 16 criminal cases involving rescue crews, 11 were dismissed, and 5 are pending.  

While migrant activists typically face dropped charges or acquittals, migrants themselves often receive convictions and prison terms. Since 2013, about 3200 people have been arrested in Italy for migration-related offences, mostly people accused of driving migrant vessels. “Boat drivers” are tried based on weak evidence, unreliable witnesses, inadequate legal defence, and closed court hearings. In 2022, there were 952 migrants in Italian prisons charged with aiding illegal immigration, of whom 562 had been convicted. 

Criminalisation of border violence 

Migrant advocates rightly condemn Italy’s criminalisation of migration; however, many simultaneously advocate for the utility of criminal law in safeguarding migrant rights. By leveraging criminal law’s “moral voice”, they express outrage over rights violations at borders and seek to delegitimise anti-immigration policies. This pro-migrant stance also operates within an antagonistic framework, distinguishing between the “righteous defenders of human rights” and “the evil violators”, while advocating for punishment to underscore this separation.  

Many migrant advocates and scholars call for a shift in criminal proceedings: moving away from prosecuting irregular migration and focusing on punishing politicians whose policies result in migrant abuses. Italian and European activists, for example, have backed the three proceedings against Matteo Salvini, the former Italian Minister of the Interior, between 2018 and 2019, for allegedly kidnapping rescued migrants by refusing to let them disembark from coastguard vessels. While one case was blocked and another dismissed, Salvini is currently facing trial for the third.  

Additionally, migrant advocates promote prosecuting those complicit in abuses against migrants in Libyan camps. They celebrate when Italian courts convict such individuals, with sentences ranging from 10 years to life imprisonment. They also urge the International Criminal Court’s prosecutor to charge those implicated in migrant abuses in Libya with crimes against humanity and war crimes and to recognise the complicity of European leaders for outsourcing border control to the Libyan “coastguard”.  

“Borderline” penality 

In the antagonistic confrontation around migration, anti-immigration politicians use criminal law to exclude migrants, while migrant advocates use it to denounce Europe’s violent border regime. However, a closer look at how criminal law operates in practice reveals that the distinction between criminal cases aimed at deterring irregular migration and those for safeguarding migrant rights is blurry. Offences against the person are prosecuted alongside immigration offences, and the same judicial authorities act as enforcers of national borders and migrants’ dignity. The rationales of this penality are “borderline” because they are ambiguous and draw on both anti-immigration and pro-migrant discourses. Yet those who end up in prison are only the racialised migrants. After all, penality is not a tool in the hands of migrant advocates or individual victims but requires institutional power to enforce the law. In a climate where anti-immigration views wield the most power over policy, criminal law is more likely to target migrants than their abusers. Not surprisingly, following a tragic 2023 shipwreck near Cutro, Italian authorities swiftly prosecuted four migrant “boat drivers”, with one already sentenced to 20 years, whereas investigations into institutional actors for failing to rescue migrants have struggled to progress. 

The consequences of making migration a matter of criminal law are tragic for migrants. Prosecutions built on hasty investigations and aggressive interrogations, aimed at finding both the “smuggler” and the human rights violator, lead to a widespread incarceration of racialised migrants. In an already securitised border regime, the increased criminalisation at borders, even if well-intended, also makes the Mediterranean crossing even more perilous. Risks of arrest deter skilled migrants from captaining boats, leading to inexperienced individuals taking charge. Migrants are sometimes forced to stay in the hold to evade identification, risking asphyxiation. Authorities prioritise identifying smugglers over aiding migrants. Finally, this penal antagonism harms the quality of democracy, as it diverts the focus from meaningful political deliberation to criminalisation, framing political issues as crimes to be adjudicated rather than discussed. 

Political agonism 

Penal antagonism will not solve the exclusionary politics of borders. The answer, I suggest, should emerge from “political agonism”. The conflictual nature of the migration debate should not be eliminated by reducing it to an apolitical administrative matter. Instead, the conflict over migration should take an agonistic – rather than antagonistic – form, where, in Chantal Mouffe’s words, “Adversaries fight against each other because they want their interpretation of the principles to become hegemonic, but they do not put into question the legitimacy of their opponent’s right to fight for the victory”. It remains a conflict but one that unfolds through institutional and extra-institutional politics rather than through punishment.  

Practising agonistic politics is challenging amidst inequality and marginalisation, which drive both border crossings and punitive government responses, fuelling antagonism. Nonetheless, we could nurture pro-migrant agonism by emphasising the political, rather than the criminality, within migration, and by striving to affirm a political landscape that rejects harm towards migrants. An important step is to cultivate a critical awareness of the violence and racial injustices that all border penality perpetuates. Promoting an abolitionist politics regarding border penality could reduce harm by shifting some of the discourse from punishment to more political responses to border violence. 

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