Criminalization in the humanitarian space is a form of governance whereby national and supranational entities control and sanction humanitarian actors and affected populations. This includes criminalization processes, through which states, media, humanitarians, or citizens define particular groups and practices as criminal or as a crime, and the use of penal power to sanction violations of public law and harm to public welfare.
In humanitarian discourse, the word “criminalization” is used broadly. It includes state-based penal practices and punishment imposed by courts, as well as civil penalties and administrative sanctions by national or supra-international courts and regulative bodies. Administrative sanctions are disciplinary in nature and used when policy, procedure, or codes of conduct have been violated. Sanctions or punishments include monetary penalties, suspension or demotion, loss of authorization to operate, or confiscation of equipment imported or used illegally. They can even involve the suspension of an employee found guilty of sexual misconduct, the expulsion of an international organization by the host country, or the confiscation of drones flown illegally in an emergency.
Socio-legal research has highlighted the blurred relationship between legality and illegality, and the co-constitutive relationship between processes of legalization and juridification and the rise of illegalities. This includes belief in “magical legalism”–the assumption that if an act or transaction is prohibited it either does not occur or it occurs as an anomaly (Sandvik 2011). Focus is given to how classifications, justifications, and enforcement practices originate, and through which moral and political projects they are enacted and changed over time (Schneider and Schneider 2008)–for example, legality claims in formal institutional settings, such as courts, or outside this structure. Legality claims refer to efforts to portray actions as legal or illegal regardless of how the law or elites address or see the actions (Cook 2011), and they also include framing efforts to transform grievances into “criminal” injustices (Sandvik 2018).
The use of penal and quasi-penal legal approaches amounts to a series of sorting exercises involving the demarcation of the kind of activities that are legitimately accepted as humanitarian aid (not violating counterterror measures, bans on proselytizing); the permitted organization of aid activities (measures against money laundering and corruption); and the changing demarcations of legitimate encounters among humanitarian practitioners and between practitioners and beneficiaries (involving bans on harassment, sexual exploitation, and violence by humanitarian workers).
Normatively, from the perspective of the sector, this engenders a stratified conceptualization of criminalization as a narrative of decline of the humanitarian space–but importantly, also as a progress narrative that promotes the imperative to “do no harm.” As a narrative of decline that hampers access or the ability of actors to deliver “principled humanitarian aid,” criminalization includes counterterrorism measures and criminalization of local networks through “material support to terror” provisions, restrictive non-governmental organization laws and the merging of migration control and criminal justice, whereby organizations and professional and volunteer humanitarians are punished for assisting displaced individuals. It also refers to the criminalization of displaced people’s self-protection mobility strategies, thereby perpetuating the criminalization of poor people and deviant male youths. Criminalization as progress narrative concerns the criminalization of wartime rape; the safeguarding (harassment, sexual exploitation, violence) against unlawful behavior by humanitarian staff; and initiatives to tackle corruption (e.g. in food aid or refugee resettlement).
References
Cook, M.L. (2011) “Humanitarian Aid is Never a Crime”: Humanitarianism and Illegality in Migrant Advocacy. Law and Society Review, 45(3): 561–591.
Sandvik, K.B. (2011) Blurring Boundaries: Refugee Resettlement in Kampala: Between the Formal, the Informal, and the Illegal. PoLAR: Political and Legal Anthropology Review, 34(1): 11–32.
Sandvik, K.B. (2018) Humanitarians in Court: How Duty of Care Travelled from Human Resources to Legal Liability. The Journal of Legal Pluralism and Unofficial Law, 50(3): 358–374.
Schneider, J. , Schneider, P. (2008) The Anthropology of Crime and Criminalization. Annual Review of Anthropology, 37: 351–373.