CRITIQUE AND ANALYSE THE CROSS BORDER CRIMES IN THE INTERNATIONAL LAW
Author: Paavni Thareja
Raffles University, Neemrana, Rajasthan
ISSN: 2582-3655
ABSTRACT
The article aims to analyze the increasing cross border crimes in the world with an initiative to criminalize border violence as a crime in international law. This article evaluates the comparative study of border violence in India, Australia, and the European Union. It also prescribes the obligations towards migrants in the ambit of anti-impunity. The rational analysis of anti-impunity creates a diversion of the possibilities of strategized litigation in international criminal law. Critics of anti-impunity have argued to “the turn to criminal law” in human rights. The article underlines the object to call for criminalization of the border violence by both domestic and international machinery by seeing the conditions all around the globe. The problem of cross border crimes is directly the issue of inequality in the world. Therefore, the article mentions the positive as well as the negative impact of criminalizing the cross border crimes.
KEYWORDS:
Cross border, crimes, anti-impunity, criminalization and international
- INTRODUCTION
In the present scenario, many of the advocates have continuously appealed to criminal law, including international criminal law, in order to establish some kind of liability for border crimes. Many movements of protests and politicians have laid pressure affinity between modish abuses on the migrants and old mass enormities which includes many concentration camps. Many of the politicians in the developed countries institute barbarous measures which are against migrants; also many of the activists pointed to the criminal law and consultation of anti-impunity.[1] The rising modern terrorism is more complex and is aiming to diverse ideological/religious and political goals which are capacity for grievous violence, and a transnational extension beyond local borders. Terrorist groups have mastered a deliberately unpredictable quality in order to achieve greater psychological terror and the creation of anxiety in any kind of target group. This is indirectly meant to create a psychological and harmful impact, the extremist motivation of the religion of various groups and making an environment of worst governance, poverty and no social services that affect most of the countries tends to add on the injustice and hurdles. Moreover, there is no universally accepted definition of international terrorism.
- ANTI IMPUNITY- OBLIGATIONS TOWARDS MIGRANTS
There are no exceptional or unexceptional situations under customary international law as well as under the Convention Against Torture (CAT) in order to answer whether a stage of war or a great threatening of war, unreliability of internal politics, a public emergency which may invoke as an understanding of torture. International law imposes this kind of prohibitions and restrictions on states but criminal law authorizes them on the domestic and the international stage.[2] For international criminal law, the Rome Statute provides us the foundational and organizational status granted to torture which includes many and another kind of behaviors but these not appropriate or unconfined. This kind of torture and threats should be a crime against humanity under Article 7 1. (f), Article 7 1. (e) & simultaneously criminalizes such imprisonment “in violation of fundamental rules of international law”; and Article 7 1. (k) which defines to “other kind of inhumane acts”. These three provisions embellish the “open character” of international criminal law.[3] Such a texture suggests that forms shall be added in types of violence that were previously unconsidered as international crimes.[4]
- EXPLANATION CROSS BORDER CRIME IN AUSTRALIA, INDIA, THE EUROPEAN UNION
Pacific Solution (2001) was laid down by Australia where refugees were seeking asylum and sent for processing in detention centers which were Australian-funded in Papua New Guinea Nauru and Manus Island.[5] Modeled on the U.S.’s earlier offshore treatment of asylum seekers in Guantanamo Bay,[6] the Rome Statue’s Article 15 coastal detention of Australia has straightened the rule of law principles by way of investigation through the prosecutor to carry an investigation which is based on the information provided called proprio motu.[7] under
The publication of Vincent Chetail (2016) created another remarkable work that made one whole case study of Australia and laying down those important grounds for the generic turn towards anti-impunity.[8] The opening paragraph of Chetail has tried to convey an extraordinary sentiment which prescribes that approach for impunity for violations against those migrants globally is something or more like a WCS (worldwide criminal scheme). We need to also refer submission of MP Wilkie’s where Chetail has asked that there was any blood on his hands or not? This question was spread and shared by so many people who tend to observe or carrying the control of migration in the whole world. This question has gained so much controversy in Australia as there are policies of returning back asylum-seekers & attending mistreatment constitute crimes against humanity.”[9] In India, various types of agreements, conciliation, and mediations have been made between India and Pakistan. There were so many international agreements like Tashkent Agreement, Lahore Declaration, Shimla Agreement, Agra Summit, and Confidence Building Measures are the exciting examples. In 2003, some crucial steps by Atal Bihari Vajpayee when he came to Pakistan where he made forward the friendship step with Pakistan were appreciated by both countries and the international community too. When Musharraf visited Agra in 2001 he made an assurance that he inspirited his counterpart that he came to have a meeting with efficiency and he also proposed a corresponding plan of action to deactivate worries and promote the friendship of peace. He also mentioned that Pakistan might have recommended some fighters to equalize their struggle and he called India to put an end to atrocities that are in Indian held Kashmir.[10] There are other agencies that include some high special security forces to guard other high profile targets and the other trained forces.
Let’s see about the European Union in the context of cross border crime. The abuses framed against refugees and so many migrants as criminal charges were first emerged around the same time as ‘offenses’.[11] After coming into the existence of the Rome Statute (2002), the “Ant impunity of European Migration ” discussion strictly initiated need of an hour for the criminalization of human trafficking but not making some direct allegations against border policies enforced.[12] A Human Rights Watch report in the year 2009, countries have accused Ukraine of torture practices against asylum seekers.[13] The report highlighted what role states on the exterior margins of Europe used to have historically in the progressing or developing ill-treatment.[14] Many of the observers have noted that the movement escaping within Europe has become much tougher which inclined made the violence on the border grew at the EU’s external areas of borders.[15] Also, many international organizations, as well as NIO’s, had accused Greece of asylum explosion seekers who promote maltreatment and force the torture at various levels.[16]
- ANALYZING THE GLOBAL TREND
The Prosecutor of ICC may declare the accountability and transparency for the violations of rights of Rohingya refugees who fled from Myanmar.[17] The main focus is on the analysis of the fault lines which have been made between “developed” and the “developing” countries. The transforming curl to the new anti-impunity in the context of migration is arguably global. On 23:01:2020, the ICJ has joined this cause because it issued measures like “provisional measures” in order to prevent and stop genocide crimes which are totally against the minority of Rohingya in Myanmar. It has been explained concerning Syrian refugees.[18] Working inside this appropriate context the Special Rapporteur of the Human Rights Council has made identification on WCS ie. Worldwide Criminal Scheme, which is an arbitrary execution. The dramatic and drastic note was provided in some recent reports by Callamard which we think that strongly gives clear evidence to the rising anti-impunity in migration.[19] The abovementioned report is concerned about what we call it or describe as human rights and a crisis of humans called humanitarian crises. The main characteristic of such a crisis is a reign of impunity especially for its prisoner and is meant for the tolerance of its causalities.” Callamard has also explained that immediately explains that “the predictability of an international crime which is so viral makes its tragedy so narrow and disorganize.[20]
- BORDER ENFORCEMENT AND OFFENCE
There are ways of direction where the enforcement of the border has placed its impact and legs. Firstly, there can be an imposition of strict conditions to control the total number of immigration which is illegal. Such kind of higher and extensive enforcement can create a deterrent effect on crime by creating opportunities for increasing detection of the offenses and apprehend the criminals in the way imposed by directions. The various pieces of evidence proclaimed that the enforcement techniques have routed migrant people far away from their residents where they used to live. It could also result in lower rates of property crime.[21] But there is another side also where such enforcement can create a stage of increasing crimes if there is a rise in smuggling and such smugglers commit other types of crimes ie. Violence crime. Seeing the first case, leveled up enforcement had played an immense role in reducing border crimes. Whereas in the second case, we see that excessive tough enforcement is a countervailing force to fall the rates of such crimes on the border.
A drastic issue in examining the impact of such enforcement activities upon the incidents of crime is the fundamental relationship between these variables. In a generalized view, the crime is generally labeled as:
- The functionary of the payoff
- The various risks of apprehension and the seriousness of the punishment expected
- The reward legal replacements to crime like work
- The enforcement of the law is modeled as a function of, among other things
- Ehrlich and Brower’s the incidence of crime in 1987.
- Levitt (1997) has suggested that “empirical work shows a zero or positive effect of policing on crime is a result of the strong relationship of two variables”.[22]
The present problem has less severity when analyzing the positive or negative impact of border enforcement on offenses. There are many changes that have occurred in border enforcement that directly does not drive the changes that occurred in crime rates and quality. The measures of border patrol were used which are so exogenously detrimental conditions to control the number of illegal immigration. The determination of the intensity of border enforcement is at the federal levels, whereas police, the department of a sheriff and the law enforcement agencies are given charge for responding to changes at locals.
- WHAT EFFECTS DOES POLICE, DEMOGRAPHIC VARIABLES, DRUG SEIZURES, AND ECONOMIC VARIABLES HAVE ON CRIME
The seizures of the drugs create a deterrent effect on traffickers (concerned narcotics) and also may instigate them to use methods that are less prone to violence. In Mexico, the interest derived is considered most of the economic conditions and how it impacted the rates of border crimes in the United States of America. It is thereby suggested that the increasing maquiladora of wages, a decrease in the rate of the real exchange rate, and lessening of inflation of Mexico are correlated with border crimes in the U.S.A. The increased wages and increased peso value are interrelated with access to the frequency rate of border crossings in the United States of America.
The detrimental factor is also Population growth which is inextricably related to higher rates of property crime. The sectors which are overpopulated are considered to be wealthy so chances of stealing are more but there is higher attentiveness of people who implicit good chances in order to avoid arrests to discard goods stolen.[23] It has to be strictly noted that a high population has a connection to property-related crime not with increasing rates of violent crime.
- ILLEGAL IMMIGRATION AND CRIME
The drastic relationship between illegal immigration and crime at borders can be seen in three reasons:
- illegal immigrants those who commit more/ high crime
- illegal immigrants are more likely to be victimized by crime and/or
- Many of the illegal immigrants make use of smugglers who commit more crime.
Another criticism is that there is very little empirical evidence that shows or proves immigrants (legal or illegal) usually commit more crimes than others (native). Hence, the other two reasons mentioned above are the basis on which we expect to find the correlation between illegal immigration and crime.
- CRITIQUE OF ANTI-IMPUNITY
There is a legitimate objection for the anti-impunity skeptic which will be rising probably. There is a question that needs to be answered that what are the consequences of putting so many people in prison? Will it ever be a progressive and effective solution for solving such a problem? The answer to the question is that it is not a solution. The prisons we have must be filled by those who are accused of the worst crimes but with migrants and refugees, this would also reduce the overcrowding of the prisoners.
So many critics have long arguments and have claimed that this problem is stuck in jus cogens which have the curious feature of begging the question.[24] Whether it is meant that the torture, inhumane and bad treatment of migrants is “totally prohibited or not”? Martti Koskenniemi would give the response that this is an occasion of international legal blatant.[25] International law censures many policies and those policies framed on the basis as “jus cogens” might cause failure to perform the legal as well political work which is the mandate to declare the checking of border crimes. In order to convince the opponent the “Imperious norms” may fail consistently. We should adopt “methodological conformity” which would intend to destroy the value-burdened acknowledgment of jus cogens. The legality of arguments depending on the country’s consent qis far better than one relying on “higher law.” The problem relies on that we make unnecessary assumptions like we are always correct and disregard away the requirement to establish our case. Allegedly, jus cogens are mostly been used to cast political rivals as villains. If we take a moral based high ground, they view non-allowance of multiple opinions and we must accept perspectives on those issues which are controversial.[26]
New anti-impunity polish off in rethinking the outlines of the polity. It creates the view that the present existing law does not talk about certitude or clarification within a pre-established context. The law is also about rationalizing and eliminating various types of violence against humans to understand the topic. The migration framework is not acceptable as part of the authorization of states. In order to disqualify this kind of thinking as it lacks to justify the assumption that people representing the expanse situation can have the enjoyment of the freedom of raising objections to others to first legitimize their positions. This is concluded to be a strategic idea and a principle formula. While determining how to criminalize such drastic actions of humans at the cross border there is a need of an hour to criminalize these actions properly and legitimately but we can’t ignore their vindications and limitations to stand behind a need for “substantialism”. This call on the present issue only creates a sensible argument against the assumptions which are political that go too apart what substantialism is alone. It is impossible to seek to “recuperate” the outcomes possible for humans in the world. The end of consequentialism is seen in the formulation of which types of conditions are for the betterment and welfare of citizens of a specific country. There are implicit preferences that are already available for citizens over other people in such explication.[27]
- CONCLUSION
The many results show that there has been a consistent showcase of border crimes in the broader trends during the study. The study also shows that in the past few years under property crime has declined very drastically at the border. The resultant effect is that a greater sphere of border crime is now regarded as violent crime internationally, even if the total crime has fallen or risen. Illegal immigration is related to increasing violent rates of crime and larger border enforcement have played a major role in the reduction of rates of property crime. Very interestingly, when in one sector border enforcement implication increases then it has spilled over effects which will lead to increased violent crime rates at neighborhood sectors. We have found the conclusion that high enforcement has an interconnection with less violent crime, greater enforcement has interconnection with high violent crime. This highly positive connection can be the conclusion of local enforcement at borders. Realistic future workers should always look forward to more and focus on those highly careful factors which help to establish the interconnection between immigration policy and express or implied conditions on the border crime.
The anti-impunity pessimist would raise legal objections. There is a huge difference between the usage of comparative study in the urge for political action and the punitive conclusion that they “must be punished.” I would suggest that if we put so many people in prison it will never be a developing solution for this problem. At least, we can put those behind the bars who have committed the worst crimes but not those migrants and refugees.
[1] On anti-impunity generally, see M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. COLO. L. REV. 409, 421 (2000); Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities, 95 AM. J. INT’L 7, 16 (2001). In the context of migration, see e.g. Ana González-Páramo, The widespread impunity over migrant deaths, STATEWATCH (Nov. 2017) http://www.statewatch.org/analyses/no-321-migrant-deaths-impunity.pdf.; Ryan Goodman (@rgoodlaw), TWITTER (Last visited on June 22, 2019).
[2] Indeed, the criminalisation of torture is obligatory under the Convention Against Torture. See art. 4.
[3] On the “open texture of law” see H.L.A. HART, THE CONCEPT OF LAW 124-128 (2012).
[4] This of course raises a concern in terms of the principle of legality, nullum crimen sine lege.
[5] One should note the role of the international organization of migration (IOM) in putting in place this infrastructure. See Ishan Ashutosh & Alison Mountz, Migration management for the benefit of whom? Interrogating the work of the International Organization for Migration, 15 CITIZENSHIP STUDIES 21, 31 (2011).
[6] See DANIEL GHEZELBASH, REFUGE LOST: ASYLUM IN AN INTERDEPENDENT WORLD (2018); Tania Penvolic and Azadeh Dastyari, Boatloads of Incongruity: the Evolution of Australia’s Offshore Processing Regime 13(1) AUS. J. HUM. R. 33 (2007); Itamar Mann, Dialectic of Transnationalism: Unauthorized Migration and Human Rights 1993-2013, HARV. J. INT’L L. 54(2).
[7] Rome Statute, supra note, 12 art. 15.
[8] Vincent Chetail, Is There Any Blood on my Hands: Deportation as a Crime of International Law, 29 LJIL 917 (2016).
[9] Ibid.
[10] Sayed Raffat Hussain, “Pakistan‟s Changing Outlook on Kashmir” South Asian Survey. Vol. 14, (2), (2007), 196.
[11] See Human rights watch, Ukraine: Migrants and Asylum Seekers Tortured, Mistreated, available at https://www.hrw.org/news/2010/12/16/ukraine-migrants-and-asylum-seekers-tortured-mistreated (Last visited on April 5, 2020).
[12] Engle, supra note 4, at 1175; Anne Gallagher & Paul Holmes, Developing an Effective Criminal Justice Response to Human Trafficking: Lessons From the Front Line, 18 INT’L. CRIM. JUST. REV. 318, 319-320 (2008); Hammerl, supra note 40, at 14.
[13] See Human rights watch, Ukraine: Migrants and Asylum Seekers Tortured, Mistreated, available at https://www.hrw.org/news/2010/12/16/ukraine-migrants-and-asylum-seekers-tortured-mistreate (Last visited at April 5, 2020).
[14] Id.
[15] Hammerl, Compare with early critiques of European economic integration, recounted in QUINN SLOBODIAN, THE GLOBALISTS: THE END OF EMPIRE AND THE BIRTH OF NEOLIBERALISM (2018) (chapter 6). This is what is referred to, in popular commentary, as the dynamic of “fortress Europe”; see e.g. Kenan Malik, How we all colluded in Fortress Europe, THE GUARDIAN available athttps://www.theguardian.com/commentisfree/2018/jun/10/sunday-essay-how-we-colluded-in-fortress-europe-immigration (Last visited on April 5, 2020).
[16] Greece: No End in Sight: The Mistreatement of Asylum Seekers in Greece, OMCT SOS NETWORK available at https://www.omct.org/monitoring-protection-mechanisms/reports-and-publications/greece/2019/08/d25483/ (Last visited on April 5, 2020).
[17] General Assembly, Universal Ratification of Rome Statute Crucial to Reduce Impunity for Atrocity Crimes, International Criminal Court President Tells General Assembly available at https://www.un.org/press/en/2019/ga12210.doc.htm (Last visited on November 4, 2019)
[18] Kevin Jon Heller, Implications of the Rohingya Argument for Libya and Syria (and Jordan), OPINIO JURIS available at http://opiniojuris.org/2018/04/10/additional-implications-of-the-otps-rohingya-argument/ (Last visited on December 10, 2018).
[19] Id. 18
[20] Id. 18
[21] As McCormick and Tollison (1984) demonstrate, the effect of police on crime is ambiguous. As the likelihood of detection and arrest rises and measured crime increases, the deterrent effect of more police should lower arrests and crime should fall.
[22] Another complicating factor is the relationship of policing to the reporting of crime. Reported crime is an underestimate of actual crime, and the size of the bias is related to the degree of police presence.
[23] Pia M. Orrenius and Roberto Coronado, The Effect of Illegal Immigration and Border Enforcement on Crime Rates along the U.S.-Mexico Border, pg 23.
[24] Martti Koskenniemi raised this objection against peremptory norms a long time ago. See Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16(1) THE EUR. J. INT’L L. 113, 122 (2005).
[25] Id. 24
[26] Samuel Moyn, the Embarrassment of Human Rights, 50 TEX. J. OF INT’L L.: THE F. 1, 1 (2015).
[27] See e.g. Catherine Dauvergne, Citizenship with a Vengeance, 8 THEORETICAL INQ. L. 489 (2007).