Unmasking state-perpetrated crimes during migration control – a new face of crimmigration 

Irina Fehr is a PhD candidate at Tilburg University, the Netherlands. In her doctoral project, she studies EU migration control through the lens of criminal law and applies criminal law to harmful border control practices, adding a new perspective to the existing crimmigration theory. Her interdisciplinary research fundamentally builds on ethnographic fieldwork conducted at external EU borders in Croatia in spring 2023. 

Introduction 

When attempting to reach Europe, migrants often experience harmful treatment by state actors, including – and to list a few – physical violence, destruction of personal belongings, or inhumane detention conditions. Still, these acts are rarely prosecuted as crimes, and the respective officials largely go unpunished. In the following, I unveil the lacking criminal law response to violent migration control practices as a novel face of crimmigration, critically re-thinking existing scholarship on the crime-migration nexus.  

Hereby, I draw on the concept of criminal selectivity, illustrating that Western states use criminal law selectively for migration control purposes through the interrelated mechanisms of over- and under-criminalization, which are identified as two sides of the same coin, and must therefore be studied together.

State-perpetrated crimes during migration control 

Over the past decade, scholars and activists have highlighted the criminal nature of migration control practices. For instance, selected academics have discussed border violence as a crime, mobility restrictions as a form of kidnapping, and migration control as racist state crime.  

There have even been communications to the International Criminal Court, calling for migration control practices in Greece and in the Mediterranean Sea to be investigated as international crimes. The UN mission to Libya concluded that the treatment of migrants can amount to crimes against humanity.  

Several NGOs also adopt criminal law-based language when speaking about Europe’s response to migration, for example by referring to the Mediterranean Sea not only as a graveyard, but as a crime scene. All of these perspectives emphasize criminality during migration control, but they have not yet been adequately linked to the academic field of ‘crimmigration’.  

Identifying a new face of crimmigration 

After two decades of research on crimmigration since the coining of this term in 2006 by Juliet Stumpf, much knowledge has been produced on the crime-migration-nexus, and the rising entanglement of criminal and migration law. ‘Crimmigration’ has evolved into a critical and interdisciplinary research field examining manifold interconnections of migration and crime, studying the criminalization of migration, and illustrating ways to challenge such criminalization.   

This includes an investigation of the merger between criminal and migration law, exploring corresponding jurisprudential implications such as the growingly entangled functions of the two legal fields (see here, here, and here). Also, various forms and consequences of the crimmigration trend have been investigated, including racial profiling, migrant imprisonment, detention, and deportation, along with the criminalization of migrant solidarity. Thereby, crimmigration scholars mainly argue that people-on-the-move are increasingly racialized and criminalized, and that criminal law is used excessively for migration control purposes.  

However, the examples above suggest that migrants are not only subjected to excessive criminalization, but that they often also become victims of state-perpetrated crimes which go unpunished. While multiple scholars have studied victimization and harms that people-on-the-move experience during migration, they have also not described them as criminal acts committed by the state. 

Accordingly, the outlined state-perpetrated crimes against people-on-the-move constitute a blind spot in the scholarly debate. Although some scholars have discussed racist violence against migrants as state crime (see here or here), such criminological approaches have also not yet encompassed a more positivist examination of specific criminal offenses being perpetrated by state officials during migration control, nor how the lacking prosecution thereof serves states’ migration control agendas. In other words: scholarly attention towards the selective nature in which criminal law is invoked in migration contexts is still lacking. Here, this neglected crime-migration perspective is placed for the first time within the realm of crimmigration.  

The lack of a criminal law response to harmful state conduct against migrants is identified as a new face of crimmigration, demonstrating not only the expansive invocation of criminal law in migration contexts, but also the absence thereof as a central characteristic of crimmigration. These two aspects – namely the combination of both an expansive and lacking invocation of criminal law in migration contexts – are identified as two interrelated mechanisms of instrumentalization characterizing crimmigration and are explained more thoroughly next using the concept of ‘criminal selectivity’. 

Approaching crimmigration through ‘criminal selectivity’ 

Along the lines of critical and postcolonial perspectives on the law and criminology, ‘criminal selectivity’ maintains that states formulate and enforce criminal law selectively following their hegemonic interests. Thereby, the selectivity is described to emerge from two interrelated mechanisms: over- and under-criminalization. Both mechanisms appear to be at play in the context of migration control.  

Over-criminalization describes a situation where societally vulnerable individuals are targeted excessively with criminal law, even if their behavior causes a low level of social harm. In the context at hand, this can be observed in that people-on-the-move and solidarity activists are often targeted with overly punitive measures, even if their acts primarily violate administrative rules and therefore constitute victim-less crimes. In other words: unauthorized migration into Europe and migrant solidarity are being over-criminalized. 

Under-criminalization, on the other hand, describes a situation, where individuals in a socially advantageous position are only minimally targeted with criminal law, even if their actions cause a high level of social harm. This can be observed in the lacking investigation and prosecution of state actors using physical violence, stealing personal belongings, or unlawfully detaining people-on-the-move, even if the victims suffer direct consequences, including restrictions to their freedom of movement, human dignity, or even their right to life. This aspect of under-criminalization within the European migration context has been neglected by academic scholarship and is hereby discussed for the first time within the realm of crimmigration.  

Hereby, both over- and under-criminalization occur both on paper and in practice. This means that even if certain practices – such as stealing, beating, or unlawful deprivation of liberty – are criminalized in the books, they remain under-criminalized if the state does not use its power to ensure their prosecution and punishment. 

Conclusion 

Scholarship on the crime-migration-nexus has centered primarily around the element of over-criminalization. While crimmigration scholars have uncovered and condemned state violence and harmful border control, such practices have not yet been identified as specific crimes committed by state officials against people-on-the-move which remain unprosecuted and unpunished. This form of under-criminalization thus emerges as a new face of crimmigration. Through the lens of criminal selectivity, I demonstrate that over- and under-criminalization are both at play in Europe’s migration context, and – as two sides of the same coin – must be discussed together.  

In light of this absence within crimmigration literature, it even appears that scholarship itself displays the selectivity that lies at the heart of European criminal justice systems: Crimmigration scholarship currently mirrors the popular attention paid to over-criminalized behavior, merely criticizing, but still emphasizing how migrants are increasingly subjected to criminalization. 

We must therefore strive for a more holistic scholarly debate around the crime-migration-nexus, not only addressing the over-criminalization of migration, but also the – theoretically possible, but currently still lacking – criminalization of harmful migration control practices. Otherwise, crimmigration scholars risk reproducing the continuously criticized associations between migration and crime, failing to assume their scholarly responsibility to engage with the glaring absence of a criminal law responses to state-perpetrated harm against people-on-the-move.  

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