The Rule of Law and Refugees
Updated: May 3
I have begun writing a series for Jurist called The Rule of Law Chronicles. The first in the series is entitled America's Shadow Theocrats. The second in the series is Government Abuse of Power.
How does the rule of law -- or, more precisely the perversion of the rule of law by corrupt or self-dealing power holders -- relate to refugees? Quite a lot, it turns out.
The rule of law has gotten a bit of a bad rap in recent decades as neoliberal governments and organizations urged post-Soviet countries seeking allies and access to the EU to privatize their public holdings. "Liberal," to these neoliberals did not mean "democratic," it meant "free market" and capitalist. Not only were democratic political systems considered secondary, the rule of law -- administered by courts and law enforcement agencies -- were often barely considered, or turned to late. When rule of law systems were addressed, elaborate vetting processes called lustration were often necessary to clear out people who had propped up war criminals and human rights abusers. Many post conflict countries struggled for decades with corruption in their judiciary and justices systems, the entities that would be responsible for defending the human and civil rights of their citizens, undermining the sort of political stability and reliability considered desirable in democratic countries.
Politically and economically unstable countries with governments that violate human rights cause refugee flows. One would think, therefore, that it would be in the interest of refugee receiving governments and regional bodies to promote rights and stability in rule of law systems. Instead, politicians engaging in self-dealing and grift often experiment with nativist populism, peddling in "us versus them" fear narratives in order to increase their own power and to rally vigilantes to perpetrate harm on immigrants. Theocratic and fascist countries, with political leadership that disrespects the rights of people -- often based on aspects of identity such as religion, gender, sexual orientation, race and ethnicity -- promote refugee flows through massive violations of human rights. Regressive leaders in potential receiving countries, instead of leading from respect for human dignity, too often use refugees as props in their "security theater," designed to stoke fear in their citizenry of hordes of new arrivals taking scarce resources, even when all evidence demonstrates that the benefits of admitting immigrants vastly outweighs any proclaimed short lived discomfort.
In short, governments that abuse their power and pervert the rule of law to further their fascist or nativist or theocratic or extreme capitalist or patriarchal or nationalist agendas have everything to do with refugees and migrants. Governments are only governments if borders exist. And regressive governments benefit from turning imaginary lines into front lines, borders into lawless zones where anything goes and the rule of law does not hold. Governments have complete control over refugees: their movement, whether they are welcome, their ability to work, whether they have shelter and access to basic human necessities, and whether they have rights and the protection of the law.
Most refugees are effectively stateless. By definition they are without the protection of their country of origin and have yet to receive protection from a new host government. This is precisely why ethical, stable, and reliable rule of law, including international human rights law, matters.
Because not a single one of us chooses where we were born.