The Legislative Contrast to Humanitarian Assistance in Italy: The Criminalisation of Migration Penal Populism and the Rule of Law

Author: Dr Marta Minetti (m.minetti@gold.ac.uk):Transnational human mobility is a core feature of contemporary globalisation, on which the creation of global markets, the meets of demand for labour in developed nations, and the sustainment of developing economies are based.1 The legal contexts in which policy responses have been developed have initially stemmed from the criminal law domain, while later turned into a legal contrast based on the application of administrative tools having similar coercive effects of the criminal ones. The legislative contrast to “unwanted migration” is one of the most explicit ways in which the law generates, sustains, and even legitimises hostility towards both “unwanted migrants” and those actors providing humanitarian assistance to them. In recent times, populist political movements have instrumentalized criminal and administrative law precisely for the purposes of deterring and discouraging irregular departures and to create a hostile environment both for those irregularly crossing the borders and those assisting them for humanitarian purposes. Against this backdrop, this article argues that the repressive function that the criminal law is increasingly taking vis-àvis “unwanted migration” is the result of the creep of populistic political trends in the criminal domain, which results in incompatibilities with the cardinal principles of the Rule of Law. In fact, the application of punitive instances against both irregular migrants and those assisting them has highlighted a disparity between the criminal law and immigration law fields in terms of protections available to people caught up in the two systems.2 The study discusses the obstinacy to counter the activities of the NGOs active in the Mediterranean and postulates that the legislative measures taken in this field are not aimed to the punishment or rehabilitation of a specific perpetrator, but to the prevention of the occurrence of irregular arrivals of migrants within the European borders and to the deterrence of the de-personalised phenomenon of irregular migration and its facilitation. [1] Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press 2014). [2] Amanda Spalding, The Treatment of Immigrants in European Court of Human Rights: Moving Beyond Criminalisation (Bloomsbury 2022).