Beyond Trafficking and Slavery

“Let us live or make us die!” Migrants’ challenge to their outlawry

On International Migrants Day, all liberal democratic states will reaffirm their respect for migrants' rights. This will mean little to those forced into a living death by border controls and immigration policies.

Julia O'Connell Davidson
18 December 2015

A hunger striker at Idomeni, Greece on 24 Nov. Photo by Cameron Thibos. (CC 4.0-by)Today, on International Migrants Day, the United Nations will call once again for the fulfillment and protection of the human rights of the world’s migrants and spokespersons for the Australian Government as well as for European Union member states will doubtless mouth support for that ideal. But a fortnight ago, in an open letter, hundreds of migrants and asylum seekers held at the Manus Island Regional Processing Centre called on the Australian Government to execute them rather than force them to continue indefinitely to experience ‘gradual death’ on the island. The previous week, those stranded on Greece’s northern border with the Former Yugoslav Republic of Macedonia by the introduction of a policy granting passage only to people from Syria, Iraq and Afghanistan, also staged protests. They started a hunger strike, some sewing their lips together using nylon thread. They also sought to block the railway line running between the two countries. One group of Bangladeshi men involved in the protest had slogans written in red paint on their bared chests—"Shoot us or save us," read one.

How should we respond to these calls?

It is widely assumed that liberal democratic societies are governed by political leaders who are civilised and humane, and accountable to the people whose combined will they represent. One of the ways this assumption is supported is by means of contrasts between past and present. In ancient times, we are taught, emperors, kings, and princes claimed absolute and arbitrary power over life and death. Like the Roman patriarch who, having given life to his children and slaves, was entitled to end it when he saw fit, despotic sovereigns of old exercised the right to ‘let live or make die’ their subjects, as French philosopher Michel Foucault put it. In Europe, this right was gradually diluted, the story goes, with the sovereign power to ‘make die’ increasingly justified only where the sovereign's very existence was under threat. As the modern age advanced, the rightful exercise of sovereign power was more and more understood to be that directed towards the administration and management of life.

Today, the notion that the liberal democratic state exists to safeguard, order, and enhance life, only exercising its power of death in the most limited and extreme of circumstances, is taken as central to its legitimacy and as evidence of its modernity, civilisation, and humanity. In theory, limitations on the power of death also guide its practice in relation to foreigners and minority groups. Liberal democratic governments assure us that they will not go to war except to protect us against very real and violent threats, and that they will respect the rights all members of the political community. But where do these assurances leave asylum seekers and irregular migrants—foreigners who do not threaten violence (and are in fact often fleeing violence) yet who hold no rights to membership of our political community?

Unauthorised migrants and modern outlawry

There are some who believe that sovereign states should simply kill those who attempt to make unauthorised entry onto the territory of the liberal democratic state, apparently wishing to see the ancient decree of outlawry revived. This decree constructed the outlaw as having ‘gone to war with the community’ by breaking its rules, and so licensed the community to go to war with the outlaw. It became the right and duty of community members to pursue the outlaw, “to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a 'friendless man,' he is a wolf”.

In the absence of such a legal decree, some even take matters into their own hands. People have assaulted migrants, torched refugee reception centres, as well as rammed and disabled boats carrying migrants towards Europe, leaving those aboard to perish. Such actions are deemed criminal and strongly condemned by mainstream political thinkers in liberal democracies. And yet our democratically elected governments also use force to immobilise and incapacitate many thousands of migrants. They use force to prevent migrants from escaping locations, like the Jungle at Calais and encampments at the Macedonian border, where they can barely access the means of life and are exposed to the elements, disease, and fires. They use force to impose indefinite detention in isolated locations like Manus Island. And force also backs state efforts to make migrants into social isolates within the community through policies of criminalisation and forced destitution.

By means of force, peaceable men, women, and children who have moved only in an attempt to secure their own lives and wellbeing are thus placed beyond or abandoned by the law, and excluded from any political order. They are, in this sense, made outlaws. Though not licensed to ravage or kill, it is increasingly the legal duty of the healthcare provider, educationalist, employer, landlord, and bank or building society employee to deny the migrant-outlaw livelihood and housing, and to assist the authorities in hunting him or her down. And by criminalising acts of friendship and humanity, our states further assure the friendlessness of the outlaw.

What does it mean to be forcibly held in a limbo outside society—to be in theory afforded human rights and yet to have no recognised civil or political existence or voice, and no access to any legitimate means of claiming one? That question is being answered by the migrants who are sewing their lips together, swallowing razor blades, going on hunger strike, and telling our governments that if they will not let them live, they should make them die.

Barbarity and modernity

“A ready recourse to outlawry is… one of the tests by which the relative barbarousness of various bodies of ancient law may be measured”, wrote Pollock and Maitland in their 1895 History of English Law. The migrants calling on liberal democratic states to either recognise them as full and rights-bearing persons or kill them as wild beasts tell us that it is not merely the barbarousness of ancient law that can be measured in this way. They remind us that, between the seemingly sharp contrast of pre-modern despots who ‘let live and made die’ and modern states that ‘make live and let die’, lies the sovereign power to impose living death on certain categories of human being (see also ‘Living death: separation in the UK’ by Roda Madziva). This is a power that our modern, liberal, ‘humane’ governments are continuing to exercise.

If we are not barbarous enough to tell our governments to go ahead and shoot the migrants and asylum seekers currently living in a deathlike limbo, we must give our political support to migrants by urgently demanding an end to this form of state power.

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