Penal Humanitarianism and Sovereign Power

Post by Mary Bosworth, Director, Border Criminologies. This is the second instalment of Border Criminologies’ themed series on ‘Penal Humanitarianism’ edited by  Kjersti Lohne. The series includes short posts centred around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism in articles published in New Criminal Law Review and Theoretical Criminology, respectively.

In 2017, I published an article in the New Criminal Law Review on a series of UK programmes delivered overseas that were funded by the Returns and Reintegration Fund (RRF), under the rubric of ‘managing migration.’ These initiatives, which included prison building programs, mandatory prisoner transfer agreements, prison training programs, and resettlement assistance for deportees, I wrote, 'demonstrate in quite concrete ways a series of interconnections between criminal justice and migration control that are both novel and, in their postcolonial location, familiar. In their ties to international development and foreign policy, they also illuminate how humanitarianism allows penal power to move beyond the nation state, raising important questions about our understanding of punishment and its application.' In 2016 these programs were absorbed into the Conflict, Security and Stability Fund (CSSF), which, seeks 'to deliver and support security, defence, peacekeeping, peace-building and stability activity.'

Whereas the RRF was made up of (and paid into by) the Home Office, the Department of International Development, the Ministry of Justice, and the Foreign & Commonwealth Office, the composition of the CSSF suggests a more muscular form of sovereign power. In additional to the four original departments, it includes Border Force, the Crown Prosecution Service, the Ministry of Defence, the National Crime Agency, and the Stabilisation Unit. Likewise, whereas the RRF was chaired by the Foreign Office, signaling a diplomatic approach, the CSSF’s strategic direction is set by the National Security Council (NSC) which includes secretaries of state and is chaired by the Prime Minister. It is further guided by the priorities set out in the 2015 Strategic Defence and Security Review and the UK aid Strategy. The CSSF is active in over 70 countries, which include Afghanistan, Algeria, Armenia, Azerbaijan, Bosnia-Herzegovina, Burma, Burundi, Colombia, Democratic Republic of the Congo, Egypt, Eritrea, Ethiopia, Georgia, Iraq, Jordan, Kenya, Kosovo, Kyrgyzstan, Lebanon, Libya, Macedonia, Mali, Morocco, Moldova, Nepal, Nigeria, Occupied Palestinian Territories, Pakistan , Peru, Serbia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tunisia, Uzbekistan, Ukraine, Yemen and the UK Overseas Territories.  

As its composition and geographical reach suggests, the CSSF is clearly a far bigger endeavour than the RRF ever was. Such matters are also evident in its budget, which in 2018-19 is £1.28 billion, of which £300 million is used towards mandatory contributions to peacekeeping operations. The budget is split between Official Development Assistance (ODA) that counts towards the UK aid target of 0.7% of GNI, and funding that is not ODA eligible.

In my 2017 article, I examined some RRF investments in Jamaica and Nigeria in criminal justice institutions and training as well as in resettlement programs for deportees. The programs ranged from very modest programs such as a  course in cake baking for female young offenders in Jamaica, to a new prison wing in Kirikiri prison in Lagos both of which were funded in 2012. Three years later, in 2015, then prime minister David Cameron offered to fund a new prison in Kingston.

For the UK, these programs were part of an attempt to bring about new mandatory prisoner transfer agreements in Nigeria and Jamaica, through which the British government could rid themselves more speedily of serving foreign national offenders. In tying such matters together, and in delivering them often via organisations from the nongovernmental sector, these programs, I argued, acted as a form of ‘penal humanitarianism.’ This form of aid, moreover, I suggested, allowed the British government to reinstate sovereignty over its former colonial subjects, often within the very institutions that it had originally constructed. As such, penal humanitarianism illuminated the colonial roots of much migration and migration policy in the UK, and indeed in the global North more generally.

Under the CSSF, the connections between criminal justice and migration control have become more explicit, amplified by a greater emphasis on security.  Thus, for example, under the terms of the Conflict, Stability and Security Fund, the CSSF supports the ‘Organised immigration crime taskforce (Project INVIGOR)’ 'to improve the capability of source and transit countries to tackle organised immigration crime (OIC); develop and enrich the intelligence picture of the threat of OIC; identify and investigate those involved; disrupt the use of enablers by organised criminals in facilitating OIC; and identify and recover illicit finances.'  Aimed at tackling groups who smuggling people across borders they cannot otherwise legally traverse, this programme seeks to:

• Reduce the profitability of organised immigration crime.
• Improve transit and source country’s ability to stop organised immigration crime.
• [obtain] More prosecutions and convictions of criminals involved in organised immigration crime in the UK and overseas.

So, too, the CSSF ‘Reintegration and Support for Returnees Programme’, 'delivers against the objectives in the UK Government’s Illegal Migration Strategy.' Specifically, it 'aims to increase the capacity of countries to manage the return of migrants through provision of post-arrival and reintegration support and by prison institution building.'  

No serious attempt is made to explain why people use smugglers to cross borders, e.g. in response to the lack of legal routes. Instead, the CSSF summary states obliquely 'Among the migrants’ reasons for attempting to reach the EU illegally is a belief that they can eventually find a better life there.' Preventing this mobility, is for their own good, the policy document notes, because 'organised crime groups… expose migrants to great risks due to the often-dangerous routes and methods that they use, and there are great personal costs to the individual migrants who can end up in modern slavery.'

So, too, the CSSF doesn’t explain why prison building is necessary to manage returning migrants. Instead it notes that its 'overarching outputs', namely the:

• Provision of post-arrival and longer-term reintegration support to returning migrants, [and]
• Prison reform, capacity building and training… should contribute to the following outcomes:

• A supportive return for migrants from the UK to their country of origin
• Improved capacity and facilities for countries of origin to manage returns

'As a secondary benefit' the document observes, 'the programme meets UK Government objectives of returning a greater number of migrants with no legal basis to remain in the UK, to their country of origin.'

In these examples, as migration and crime have been elided, criminal justice investment appears to have become a humanitarian goal in its own right. The implications of these developments for our understanding of sovereignty and punishment requires careful empirical analysis; a difficult task given the inaccessibility of many of these programmes and the lack of transparency about them. As we have seen on this blog, humanitarianism is in flux. One aspect of this concerns how civil society organisations face an increasingly harsh political and legal landscape. While considerable attention has rightly been given to the treatment of these organisations, and their forms of resistance to the growing restrictions (and indeed criminalisation) they face, another aspect concerns the role of humanitarianism in a more muscular form of governance abroad. As programmes like those funded by CSSF, which seek to build capacity under the aegis of aid, increasingly are designed to confine and compel, urgent questions arise about the kind of state and sovereignty that is under construction.

As humanitarian aid becomes increasingly penal, justified by and focused on security, a number of things happen.  First, and most obviously, states like Britain obscure their own role in creating insecurity – by preventing legal and safe modes of entry, for example. Similarly, presenting their actions as a response to contemporary crises, the government also effectively disavows Britain’s longstanding, historical ties to those very parts of the world where it runs these programmes. Finally, in basing aid on criminal justice and migration control, penal humanitarianism ties sovereignty to exclusion. In so doing, it upholds a racialised view of British national identity.

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How to cite this blog post (Harvard style) 

Bosworth, M. (2019) Penal Humanitarianism and Sovereign Power. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/03/penal (Accessed [date])