Published by Carlo Caprioglio, Tatiana Montella ed Enrica Rigo | 02 / May / 2023

The massacre that becomes law

Article published in Jacobin Italy on 28 April 2023

The government issues a decree named after the place where the Cutro shipwreck took place: the massacre becomes a constituent to again violently attack migrants and solidarity workers.

The image of Giorgia Meloni embracing the children of Addis Ababa and the words of Francesco Lollobrigida, the newly appointed minister for 'food sovereignty', calling for people to have children in order not to succumb to 'ethnic substitution', form the backdrop to the parliamentary debate these days on the conversion into law of the so-called Cutro Decree. It is hard to think of more powerful images and words to describe the ongoing fusion of neo-colonial and patriarchal violence. A violence that not only becomes law, but somehow claims to be a law above all others. Unlike other migration 'packages', which we remember by the names of the interior ministers in office, from Maroni to Salvini, via Minniti and Lamorgese, the Cutro decree bears the name of a place. Like the battles that are remembered by the names of the conquered territories, or the cities that celebrate the victors' pacts with the vanquished by their names, this is a measure with the force of law that will be remembered by the name of the place that the government has chosen as the seat of a Council of Ministers held at the scene of a massacre. It is the result of a massacre that becomes law; the constituent violence of the law of conquest, in the almost literal sense of the union of 'order' and 'place' - one would say, disturbing Carl Schmitt.

The criminalisation of migration

Any political or legal analysis of the provisions that are about to pass through parliament can only start from this violent and authoritarian matrix, which is certainly not resolved at a symbolic level. Despite the fact that the fight against human traffickers is the rhetorical key that has legitimised the government's descent into Cutro, the provisions of the decree that increase the penalties to thirty years (and more) for aiding and abetting irregular migration are the ones that have provoked the least political debate, almost as if to indicate that the fight against human traffickers has everyone in agreement. Suffice it to recall that Article 12 of the Consolidated Law on Immigration, in which the decree intervenes by introducing a new aggravated offence, has been used to prosecute networks of solidarity and support for the mobility of migrants. In fact, it is in the configuration of aiding and abetting irregular immigration that the Public Prosecutor's Office has charged the NGOs involved in sea rescue, some of which are still under trial or investigation, as in the case of the crew of the Iuventa or Mediterranea.

When migrants are prosecuted for providing assistance or solidarity to their compatriots, the result is almost always imprisonment, as happened to four Eritrean refugees who were convicted at two different levels and imprisoned for 21 months before the Court of Cassation acquitted them at the end of a seven-year trial (as we reported in the columns of Jacobin Italy). The same goes for those who took the helm during the crossing and now risk life imprisonment, regardless of any profit motive or role in the organisation of the voyage.

However, it should be made clear that cases involving NGOs, activists or simply fellow citizens who assist other migrants are not episodes of 'bad justice', and the tendency to portray them as such is extremely misleading. The construction of the crime of aiding and abetting irregular migration as a border protection crime - even at the expense of the rights and lives of and for migrants - is not the result of a 'misrepresentation' of the facts. On the contrary, it is the naturalised representation of deaths at sea as 'accidents', for which the responsibility ultimately falls on the migrants, who have been bypassed by unscrupulous criminals, and which plays a co-constitutive role in the criminalisation process. It is a device that indiscriminately targets all those who support the flight of migrants, that illegalises the crossing of borders as such - even those within the European space - while at the same time concealing its political and transformative charge by operating a simplification that divides migrants into victims and perpetrators and denies any political protagonism.

What counts in this criminalisation device is not at all that it leads to convictions, but rather the disintegration of community networks and ties, and the dismantling of the logistics of migrant movement, as shown by the investigations into NGOs, which, regardless of the outcome of the trials, have already achieved the result of stopping ships and obstructing rescue operations.

Something similar can be said about the administrative detention in the repatriation centres (CPR), which the Cutro decree extends again, both in terms of the maximum periods of detention and the circumstances under which asylum-seekers and migrants awaiting repatriation can be detained. When the aim is to criminalise migration as such, the criticisms that denounce the inconsistency of the declared aims of administrative detention in increasing the prospects of repatriation are of little use and, in fact, only confirm the lines of continuity of successive governments in the management of migration. From this point of view, as well as on border policy in general, it is undeniable that the parliamentary opposition owes the current government a debt of credibility. Except that in an era of fascism, the symbolism of power takes on a pregnant materiality: if it is undeniable that the decision to open a repatriation centre for each region was originally Minister Minniti's, its implementation with a decree bearing the name of a massacre has a grim flavour. Once again, like pawns in a risky game, the CPRs, hotspots and other places of detention for migrants mark new conquered territories, new lines of demarcation that extend the perimeter of spaces subjected to a law whose aim is subordination by force.

The logic of removing special protection

Behind the rhetoric of fighting traffickers, however, the Cutro decree has another radical aim. The core of the reform under discussion in the Chamber of Deputies is in fact the abolition of the part of art. 19 of the Consolidated Immigration Act, which provided for the recognition of special protection based on relational and affective ties, work and social integration of migrants in Italy. An intervention that, as several parties have pointed out in recent weeks, raises two different kinds of problems. The first is of a purely legal nature, given by the contrast with Article 10 of the Constitution, which obliges Italy to comply with international treaties, from which the obligation to protect the right to private and family life of migrants derives. The second, represented by the social impact that the reform will have, forcing tens of thousands of people, most of them workers, into an irregular situation, also due to the contextual tightening of the hypothesis of the convertibility of residence permits.

However, the debate that has denounced the illegitimacy and perverse effects of the reform in recent weeks does not take into account the longer-term context, which reminds us that the special protection we are talking about is nothing more than the result of the various reforms of humanitarian protection, abolished in 2018 by Minister Salvini as a general institute and redefined in 2020 by Minister Lamorgese's decree under the name of special protection. Despite its different names, the Institute has been one of the main tools for managing migration in the absence of legal channels for access over the last 15 years. In fact, since the economic crisis of 2007/2008, the tendency to close off labour migration flows has been almost mirrored by a steady increase in the number of permits issued on the grounds of international and humanitarian protection. In the ten-year period between 2007 and 2017, the relationship between work permits and international and humanitarian protection permits was reversed: while work permits fell from 56.1% in 2007 to 4.6% in 2017, the percentage of permits issued for protection rose from 3.7 to 38.5%. This was a rapid process, which accelerated decisively with the so-called refugee crisis of 2015: in the two-year period 2014-2015 alone, there was a fall of more than 60% in work permits, followed by a further fall of 41% the following year.

In this framework, humanitarian protection (now special), if on the legal level it has provided the implementation of the constitutional asylum, as repeatedly reaffirmed by the Supreme Court, on the political level it has been the instrument to manage different social phenomena. In 2011, following the declaration of a state of emergency due to the situation in North Africa, the granting of humanitarian permits made it possible to manage the growing migratory movements triggered by the Arab revolutions. In the same years, however, humanitarian protection was already being used to regularise migrant workers, starting with those who had animated the Rosarno revolt in December 2010, and continuing in the following years with the so-called amnesty of the countryside in response to workers' mobilisations in various areas of the south. Again in 2014, humanitarian protection was widely used to grant status to Ukrainian women already present in Italy and employed as domestic workers. In other words, humanitarian protection was the instrument of a kind of 'low-intensity' amnesty that allowed migrant workers in various sectors, from agriculture to domestic work, care work and logistics, to obtain a residence permit, intertwined with the management of the labour market in social spheres characterised by structural conflict.

There are two main consequences of this mode of governance. On the one hand, it has been the terrain of negotiation that has allowed hundreds of thousands of migrants to regularise their position on the territory; on the other hand, it has made access to citizenship rights precarious, passing through the acquisition of a stable legal status, such as the long-term residence permit, which facilitates family reunification and allows for territorial rootedness. The management of migration and labour through the humanitarian instrument has also led to the mixing of asylum and labour policies, which has had the effect, among other things, of disrupting the self-organising networks of migrants, who are scattered throughout the country and forced into the mobility/immobility dynamic imposed by the reception system. In some cases, the reception centres of the asylum system have become recruitment centres for cheap labour, especially in seasonal production such as agriculture and tourism. Finally, the recognition of humanitarian protection has largely been referred to the courts of merit, also as a result of the restrictive approach of the Territorial Commissions, bodies that are dependent on the Ministry of the Interior and are therefore bound by government directives. The delegation to the judges of an issue at the intersection of migration management, the labour market and reproductive processes has resulted in a de facto jurisdictionalisation of social antagonism, in the sense of its reconduction within a system that, by definition, institutionalises and proceduralises conflict.

A contextual analysis of the abolition of special protection therefore allows us to focus on how it was used as a tool to manage social conflict: as a partial response to the demands of those who arrived or were already present on the territory, the humanitarian governance of migration also achieved the aim of preventing and limiting the forms of self-organisation of migrants, who had mobilised at the turn of the 1990s and 2000s mainly to obtain residence permits. It is perhaps no coincidence that the material and symbolic violence used by the government in response to the Cutro massacre triggered new reactions in the streets. After the presidium organised by associations and civil society on 18 April to coincide with the debate on the Cutro decree in the Senate, the migrant movements followed up with a call for a national demonstration to be held in Piazza dell'Esquilino in Rome on 28 April. What seems to be reopening is therefore a new space for conflict and social mobilisation.

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