DURING THE COLD WAR, THOSE SEEKING ASYLUM IN THE GLOBAL NORTH WERE able to access protection that aligned with the geopolitical priorities of wealthy Western nations. Since that time, countries of the global North have been increasingly uncomfortable with irregular migration from the global South. Simultaneously, what were once matters for geopolitical relations and foreign policy are increasingly considered matters of crime and security (Edwards and Gill, 2002b). Concomitantly, the criminal justice complex has enthusiastically embraced irregular border crossing as a preeminent form of transnational crime. Swallowed up in this embrace has been a historically privileged group of border crossers--asylum-seekers.
The kinds of cross-border mobility required to seek refugee protection now routinely fall under the rubric of the Convention on Transnational Organized Crime, rather than the Convention Relating to Refugee Status (Refugee Convention). This article will chart the ideological discourses that are broadening and changing forms of insecurity related to forms of mobility associated specifically with seeking refugee protection. Then it briefly documents the meshing of forced migration with transnational crime. It examines two predominant narratives of transnational crime in relation to refugee protection by considering the extent to which such narratives obfuscate important trends in relation to discourses of rights, changing conditions of sovereignty, and de-territorialized policing practices. The article concludes that due to the discursive (and otherwise) intertwining of transnational crime and refugee protection, we know less about the causes of forced migration and possible long-term solutions. This also legitimizes the already imprecise and opportunistic category of transnational organized crime. Refugee protection must be critically reintroduced into a debate on transnational crime that has been debased by the merging of human smuggling and transnational crime, an approach that trumps any discussion of persecution and protection.
From Refugee Protection to Transnational Organized Crime
In the wake of the World War II, before the development of the Refugee Convention, Hannah Arendt (1966: 286) wrote that classifying the refugee as a criminal afforded greater legal protection: "Since he was the anomaly for whom the general law did not provide, it was better for him to become an anomaly for which it did provide, that of the criminal."
The criminalization of refugees, which Arendt believed would give stateless peoples recognition, has indeed increased, but not to the benefit of those seeking protection. The criminalization of refugees can be traced throughout different periods following the Second World War, gaining greater traction often by depicting individual refugees as deviant and therefore undeserving of state protection (Pickering, 2001).
Contemporary criminalization discourses increasingly view forced migration as an instance of transnational crime, rather than individual deviance. Instead of seeking deviant "migration outcomes," those seeking asylum are now considered integral to the illicit movement of people. Arguably, as discourses of refugee deviance developed in the late 1990s, clear discourses linking transnational criminality and forced migration emerged. Whereas the criminalization of refugees could be identified as primarily media driven, the intermeshing of forced migration and transnational crime has largely been driven by national, international, and interregional policy maneuverings. Governments of the global North routinely reduce forced migration to human smuggling, which in turn is considered another example of transnational crime. This is often located on a continuum with drug trafficking and the movement of illicit goods across borders, with little detailed discussion as to the extent or nature of the similarities or differences between these forms of cross-border movement. …