Jaya Ramji-Nogales

Questioning Hierarchies of Harm: Women, Forced Migration, and International Criminal Law

Though international criminal law has made great strides in addressing harm perpetrated against women in wartime, its gendered structure diverts attention away from other significant harms that women endure as a result of armed conflict. In particular, international criminal law’s hierarchy of harm elevates crimes committed as part of a plan or pattern across political groups over equally serious forms of harm perpetrated randomly, often within political groups. Thus the private and opportunistic harms enabled by situations of displacement and perpetrated against female forced migrants do not fall clearly within the framework of international criminal law. This vacuum of accountability extends beyond international criminal law, as female forced migrants cannot rely on their own governments, their host governments, and often even international humanitarian organizations to protect them against opportunistic violence. International criminal law could fill the void only after quite serious reconstruction, namely expansion of its scope and restructuring of its focus. It may be that a structure designed specifically to prevent and account for opportunistic violence against female forced migrants would be better equipped to perform that task. Criminal accountability might be better performed in national legal systems or informal justice systems created within camp environments. There are also solutions other than criminal accountability, such as human rights law, that might be more appropriate in addressing such harms. In the meantime, until a solution is found that places these ‘private’ crimes on equal footing with ‘public’ attacks currently prohibited by international criminal law, the serious and frequent harms suffered by forcibly displaced women will continue to be overlooked, relegated to the bottom of the hierarchy of harm.

'The Right to Have Rights': Undocumented Migrants and State Protection

Critiques of the concept and framework of international human rights are relatively rare in legal scholarship. The legal academy tends to reify international human rights law as offering solutions to all of the worlds’ problems, if we could just convince countries to implement it properly. Among the small group of legal scholars who have put forward thoughtful critical perspectives on human rights law, only a handful have explicitly extended this critique to the situation of undocumented migrants under international human rights law. Though these scholars are pushing the boundaries of contemporary legal thought, they share a common foremother who grappled with similar concerns more than a half century ago: Hannah Arendt.This article, written for a symposium entitled “Statelessness and Belonging: Perspectives on Human Migration,” aims to make explicit the intellectual debt owed to Arendt by analyzing the problems facing undocumented migrants today through the lens of ideas she presents in The Origins of Totalitarianism. It begins by defining and describing three vulnerable populations: minorities, stateless, and undocumented. The symposium contribution then presents three central arguments from Arendt’s critique of human rights as applied to the minorities and the stateless. It next discusses the striking parallels with the situation of the undocumented today and also explores the differences between the three groups. The symposium piece concludes by drawing on those differences to suggest ways to better protect the undocumented from vulnerability in the absence of adequate protection under human rights law.

Moving Beyond the Refugee Law Paradigm

Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern borders of the European Union, as well as the “crisis” in the Bay of Bengal, have drawn global attention to the dire inadequacies of the international refugee regime, even as extended through various principles of non-refoulement, in governing modern migration flows. Political responses to these mass movements, from the Brexit vote to the election of Donald Trump and his executive order halting the refugee resettlement process in the United States, have threatened the viability of refugee laws protections. At the policy level, numerous high-level stakeholders have convened in different constellations, through the United Nations and other bodies; many commentators agree that these meetings have accomplished little thus far in terms of law reform. The refugee law paradigm consumes so much space in the imagination of international lawyers and policymakers that it is hard even to begin to conceptualize an alternate approach to global migration law. The fear of losing even the narrow ground staked out to protect refugees stiffens the resistance to change. Proposals for reform tend to follow the tired old path of suggesting ways in which the refugee definition can be expanded to include new groups of migrants (ranging from climate change refugees to anyone fleeing serious human rights abuses) rather than critically evaluating the structure of global migration law more broadly.

The International Law of Migrant Smuggling. By Anne T. Gallagher and Fiona David. Cambridge, New York: Cambridge University Press, 2014. Pp. lvi, 783. Index.

International migration law is, as Vincent Chetail has described, “a giant unassembled juridical jigsaw puzzle.” The field, which is still in its infancy, awaits comprehensive mapping and overarching theoretical design. The International Law of Migrant Smuggling represents one of the most thorough and thoughtful efforts to date to construct a corner of this jigsaw puzzle, particularly as it relates to the breadth of relevant legal sources and its connections with other areas of international law. The growth of the field of international migration law depends on projects such as this one that step away from a small-bore focus on one legal instrument or one tiny segment of the field, instead presenting the vast complex of international legal sources that bear on the movement of people across borders. In the words of lead author Anne T. Gallagher AO, “[T]he impetus behind this book lies in a rejection of efforts to corral the issue into a narrow, specialist regime that fails to fully reflect critical connections with other areas of the law, including human rights, refugee law, and the law of the sea” (p. lii). In this book and its companion volume, The International Law of Human Trafficking, Gallagher offers the broad view of legal regimes, in all of their complexity, relevant to migrant smuggling and human trafficking, two of the most pressing human problems on the contemporary world stage. Read in hindsight, Gallagher and coauthor Fiona David’s assertion that “[m]igration is a central and indispensable plank of our new, globalized world” (p. 737) seems an understatement. Published in 2014, the book was in the hands of the printers before the “surge” of Central American migrants sought protection at the southwest border of the United States in the summer of 2014, before more than one million migrants arrived at Europe’s sea borders in 2015, and before thousands of migrants seeking safety in Indonesia, Malaysia, and Thailand were left stranded at sea during the summer of 2015. These situations have captured the global stage in a way that the case studies presented in the book, though equally concerning, had not. Yet the authors’ deep expertise— Gallagher participated in the development of the Migrant Smuggling Protocol as special adviser to the United Nations High Commissioner for Human Rights Mary Robinson, and David was the principal drafter of the UN Office on Drugs and Crime’s Model Law Against the Smuggling of Migrants —enabled them to anticipate the type, if not the scale, of current migration challenges. Perhaps more importantly, the book’s cohesive and comprehensive approach will make it relevant to migration situations for years to come. Rather than a traditional specialist treatise that investigates one narrow area of the law, the book takes the contemporary legal issue of migrant smuggling and envisions the entire relevant legal framework,