GLJ Short: Exploring the Potentials of International Criminal Law and the Right to Rescue (GLJ 21:3)

States in the global north have been seeking to create a distance between them and migrants drowning or being abused, in an effort to avoid jurisdiction. Can international criminal law or the civil rights of Search and Rescue NGOs create a bridge for accountability? ICL's ability to also address "banal crimes against humanity" and to express their injustice makes it interesting for strategic litigation, while activists exercising their sincerely held beliefs by performing Search and Rescue may be bringing human rights jurisdiction into the "legal black holes" at sea.

In this GLJ Shorts episode, Yannis Kalpouzos and Itamar Mann present their articles "International Criminal Law and the Violence against Migrants" and "The Right to Perform Rescue at Sea: Jurisprudence and Drowning." Both articles appeared in the Special Issue "Border Justice: Migration and Accountability for Human Rights Violations" in GLJ vol. 21:3 in April 2020. Interview by German Law Journal editor Nora Markard, editing by Marlene Stiller.

With Yannis Kalpouzos and Itamar Mann
Links to the articles

Ioannis Kalpouzos, International Criminal Law and the Violence against Migrants, German Law Journal 21:3 (2020)

Itamar Mann, The Right to Perform Rescue at Sea: Jurisprudence and Drowning, German Law Journal 21:3 (2020)

Table of Contents of the Special Issue

Abstract Ioannis Kalpouzos:
Should we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.

Abstract Itamar Mann:
Framing largescale migrant drownings as violations of international law has so far not been a straightforward task. The failures of doing so, both in scholarship and in activism, have often revealed important limitations of international law, and a form of rightlessness that is hard-wired in it. Through an assessment of arguments about drowning, framed in the vocabularies of the right to life, refugee law, the law of the sea, and international criminal law, difficulties surrounding the notion of jurisdiction persist: The maritime space has often functioned as a kind of “legal black hole.” Considering such difficulties, this Article suggests that shifting the focus from migrant rights to the civil and political rights of volunteers coming to the rescue, may help in closing the accountability gap. It thus seeks to articulate and conceptualize a form of maritime civil disobedience among rescue volunteers, which may provide the link for eliminating migrant rightlessness at sea.

Submitting articles or Special Issue proposals to the German Law Journal