International Legal Principles, Penal Populism and Criminalisation of ‘Unwanted Migration’

Abstract

The criminalisation of migration is one of the most explicit ways in which law generates, sustains, and even legitimizes hostility towards “unwanted migrants”. This article will take into examination the criminalisation of “unwanted migration” by the Italian authorities and its relation to internationally established legal principles in the area of human mobility, arguing that the expansion of penal populism constitutes a danger for the balance among them. The article starts with an analysis of human mobility in international law and the “protection through prosecution” paradigm to highlight an inherent harmony of the aims of the legal systems dealing with human mobility from the humanitarian and criminal law perspective. Section two scrutinises the Italian case and the populistic distortion of the provisions and principles entailed in the field of transnational criminal law to counter human mobility. Section three reconnects the national criminalisation of migration with the international legal dimension and argues that the misuse of the transnational organised crime framework ultimately legitimises the violation of human and refugee rights and contravenes key international law principles.