Border Crimes as Crimes against Humanity

This chapter examines border violence as ‘crimes against humanity’. It begins by explaining what it takes to interpret the phrase ‘crimes against humanity’, as it appears in article 7 of the Rome Statute, in light of rules of interpretation articulated in the Vienna Convention on the Law of Treaties. The chapter then looks at three theories of crimes against humanity. The first follows a basic tenet of Kantian ethics: the charge of crimes against humanity denounces the transformation of humans from ends in themselves to means of governing, or even of eliminating, the lives of others. A second option posits that the key aspect of claims concerning crimes against humanity directed at refugees is that they exert a kind of structural violence: certain kinds of border violence establish a system that extinguishes legal protections for humans, while making such results appear natural. Unlike other cases in which structural violence is rendered transparent to criminal law, contemporary border violence against asylum seekers and refugees can be effectively captured within a criminal law framework. A third interpretive theory suggests that border violence is deleterious towards people’s social lives, as it separates them into hermetic units and prevents interaction and mobility between groups. Proponents of this view may proceed to argue that sealing borders and eliminating the right to asylum is part of a larger plan for solidifying global racial and economic hierarchies: a ‘global apartheid’.