Part I: Chapter 2

Cover Page The handle http://hdl.handle.net/1887/83277 holds various files of this Leiden University dissertation. Author: Berlo, P. van Title: Human rights elephants in an era of globalisation : commodification, crimmigration, and human rights in confinement Issue Date: 2020-01-21 PART I The elephant in the room Commodification & crimmigration as challenges to international human rights law accountability, effectiveness, and legitimacy 2 Bars with barcodes The commodification of confinement 2.1 INTRODUCTION Migration control and criminal justice are often conceived of as exercises of sovereign state power. Whereas criminal justice processes are considered to constitute ways for the state to sanction breaches of the ‘social contract’,1 migration control is considered to be a process by which states can regulate entry to the polity – and, potentially, to the social contract – in the first place. The idea that states are in charge of criminal justice and migration control as such is not revolutionary. It is, for example, common to speak about the sovereign state’s ‘monopoly’ of crime control.2 Likewise, the control of cross- border migration has to some extent always been within the ambit of sovereign power given that it is intrinsically based on notions of sovereign territory and borders that delineate the geographical spheres of influence of sovereign states.3 In turn, in addition to the use of other mechanisms, many states utilise migration control and criminal justice in attempting to provide domestic safety and security. Indeed, for the pursuit of safety and security, it has become reflexive to turn to the public authorities governing the territory in which one is residing. Such state-centred understanding appears to be a relic of the recent past in which the coupling of public authority with matters of safekeeping and security became gradually entrenched in thought.4 In dealing with such responsibilities, on the one hand, states deploy the three ‘Cs’ of criminal justice – cops, courts, and corrections – that generally have become associated with publicly provided safety and security.5 On the other hand, states increasingly employ migration control in the pursuit of domestic safety and security. Indeed, as migration is increasingly conceived of as endangering public order, 1 On the terminology of criminal justice processes, rather than ‘systems’ or ‘chains’, see Padfield 2008, pp. 5–6. 2 Garland, 1996, p. 448. 3 Infantino, 2016, pp. 4–5; Rudolph, 2005. 4 Garland, 1996, p. 448; Schuilenburg, 2009; Shearing & Wood, 2003, p. 402. 5 Daems & Vander Beken, 2018, p. 9; Kempa, Wood, & Shearing, 1999; Shearing & Wood, 2003, p. 402. This association is by no means unjustified: as any introductory textbook on the matter will explain, the criminal justice process is essentially geared towards the control of crime and the safeguarding of individuals: see, e.g., Travis III & Edwards, 2015, pp. 3 and 19. 60 Chapter 2 domestic stability, labour markets, and cultural identity, migration control has in a host of countries been gradually securitised.6 In a globalising world, however, such state-focused conceptions of safekeeping and security are increasingly challenged.7 In the face of economic, social, and cultural globalisation, we are witnessing a radical change in the way governments deal with their responsibilities related to criminal justice and migration control. Globalisation has amongst others spurred innovative interaction of the state with a variety of other actors, including private companies, NGOs, third states, international organisations, and local communities, which has resulted in a gradual shift from ’government’ to ’governance’.8 As a result of this shift, responsibilities and decision-making processes that were traditionally within the state’s exclusive ambit are increasingly diffused amongst other actors. The work of Lahav and Guiraudon in the field of migration control is illustrative of such diffusion: they identify the devolution of decision-making and the shifting of control ’upwards’ to intergovernmental fora, ’downwards’ to local authorities, and ’outwards’ to non- state actors.9 For some time, this process was linked to a presumed loss of power and control of the state and an erosion of public authority altogether. In reality, however, many of these processes have resulted in a reinforcement of state power and authority: on many occasions the state retains a key position in the governance of criminal justice and migration control, although its role may shift significantly.10 Some have likened this to a rowing boat: whilst the state used to steer and row simultaneously, it on various occasions has altered its position in the boat to focus on the steering task whilst letting others row.11 Alternatively, some have claimed that the state on many occasions is not simply moving from rowing to steering but rather does part of both with the help of third actors in a non-fixed partnership role.12 Overall, it is claimed that 6 Bourbeau, 2011, p. 1; Huysmans, 2000, p. 752; Rudolph, 2005, pp. 9-12. This ’securitisation of migration’ nowadays occurs across countries in the global North: Van der Woude, Van der Leun, & Nijland, 2014, p. 560. It also occurs elsewhere, but scholarship relating to the securitization of migration in the global South remains scarce. See also, however, Turnbull, 2017, p. 2. 7 In fact, it is questionable whether the paradigm of the state as beacon or guardian of safekeeping and security has ever been fully justified. For example, until well into the nineteenth century, private policing, prosecution, and punishment practices existed in a number of countries including the UK and the US: Emsley, 1999, p. 32; Feeley, 2002, p. 326; Johnston, 1992, pp. 3-24; Simmons, 2007, pp. 921-923. Although migration control is a relatively recent phenomenon, it has likewise featured private stakeholders ever since its inception. Consider, for instance, the involvement of private carriers for transporting unauthorised migrants from Europe to the US in the early 1900s: Infantino, 2016, pp. 7-8. 8 Vandenhole & Benedek, 2013, p. 366. 9 Guiraudon & Lahav, 2000; Lahav, 1998. See also Franko, 2017, p. 362. 10 Doty & Wheatley, 2013; Michael Flynn, 2014, 2017; Gammeltoft-Hansen, 2011; Shichor, 1999. 11 A. Crawford, 2006, p. 459; Osborne & Gaebler, 1993, pp. 35-36; Shichor, 1999, pp. 241-243; Verkuil, 2007, pp. 159-160. 12 Kerr, 2013, p. 254; Scholten & Minderhoud, 2008, p. 145. Bars with barcodes 61 globalisation enables states to simultaneously retreat and advance, and to ultimately extend and diffuse the exercise of sovereign power.13 A resurrection of third-party involvement in both criminal justice and migration control has been identified across a number of countries, from policing to probation and from border checks to expulsion procedures.14 Settings of penal and immigration- related confinement have not been exempted from this development, which can be labelled as a development of ‘commodification’. Commodification in this sense refers to the transformation of confinement into a commodity or object of trade: confining inmates and detainees has become a tradeable service on the global market offered to states around the world.15 As will be further detailed below, the providers of these services – including private actors and foreign states – stand to gain from their involvement in such ar- rangements, whether on the basis of pecuniary rewards, domestic or institu- tional interests, or the acquisition of leverage. The sponsors or customers of these services – outsourcing states – likewise stand to gain from these construc- tions, for example because outsourced facilities are more cost-effective, because they meet policy goals, or because they allow for the preservation, acquisition, or amplification of power.16 Commodification is therefore not something that simply ‘happens’ to them: to the contrary, commodification should be under- stood as a central technology of contemporary government.17 In sum, commodification constitutes a process of outsourcing, commercialisation, and/ or jurisdiction-shopping that creates markets for control in which a variety of entities may take part.18 In this sense, it is an umbrella term, as it captures various novel modes of interaction between states and miscellaneous third actors. It is, however, not a streamlined process. Indeed, instances of commodification often follow unique trajectories and henceforth do not lend themselves 13 Doty & Wheatley, 2013, p. 435; A.A. White, 2001b, p. 113. 14 For instance, private policing has been reintroduced in primarily Anglo-Saxon countries: Fairfax, 2010, pp. 273-275; Jones & Newbum, 2002; Shearing & Wood, 2003, pp. 402-403; Simmons, 2007. In addition, there has been a rebirth of private prosecution practices in a few countries: see, e.g., Fairfax, 2010, p. 266. Likewise, in various countries, actors other than the territorial state actors are involved in managing and controlling migration: Van Berlo, 2015b. This holds true for migration control before the border, where private carriers under carrier sanction legislation are obliged to check travel documents and carry respons- ibility for retuming unauthorised migrants: Scholten, 2014; Van Berlo, 2016b. At the border, private border guards increasingly perform immigration and security checks: Gammeltoft- Hansen, 2013. Moreover, deportation azvay from the border is frequently effectuated by private security operators: Khosravi, 2009. 15 See also Matthew Flynn, 2015, p. 9; Hallett, 2004,

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