2016 | 38 | 15-27
Article title

Koncepcja kryminalizacji migracji a przepisy ustawy o działaniach antyterrorystycznych

Title variants
The Concept of Criminalizing Migration vs. the Provisions of the Anti-Terrorist Operations Act
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The paper addresses the issues related to the concepts of criminalizing migration as encountered in the literature, and their practical application in constructing the legislation on foreign nationals, including Polish nationals, in particular consideration of the provisions of the Anti-Terrorist Operations Act of June 10, 2016. Migration processes are inherently related to the functioning of societies. It is estimated that currently as a result of migration, ca. 120 million people live in countries other than those in which they were born. The past century was marked by a series of events that caused large waves of migration, i.e. the two world wars, but also the geopolitical changes taking place across the world after 1945, e.g. end of the colonial period, the Cold War, and the collapse of the communist system in Central and Eastern European countries. The 21st century is not free from large scale migrations. They are, inter alia, the result of the strategy of combating terrorism, especially of Islamic provenance, pursued by the United States, following the attacks of September 11, 2001. In due course, this policy spawned the processes of destruction of political systems in northern African countries and on the Arabian Peninsula, and consequently the endeavours of the citizens of those countries to make their way to the rich European countries. As frequently referenced throughout the literature on the subject, this background of large scale migration gave rise to a conflict between the Global North, i.e. a number of highly developed and industrialised countries, with the Global South, a concept which covers a group of developing countries formerly called Third World countries. The Global North is perceived as the final destination for the residents of the Global South, who are also being portrayed as a potential threat (including that of terrorism), which should effectively be warded off. Nowadays, migration has acquired a new image, having evolved from a much desirable process into something perceived by the liberal world as synonymous with potential threat. Migrants, not only those from the Islamic countries, are portrayed as a threat, whereas regarding them as a necessary component for the development of capitalism, popular until very recently, seems to be clearly off the agenda now, if not altogether abandoned. Such new trends in the perception of migrants are becoming even more prevalent due to the acts of terror for religious reasons committed in the countries of the Global North of which the migrants are then accused of, often unjustly so. Consequently, politically motivated concepts of combating terrorism come into being, which firmly assign both the cause and effect of such attacks to ‘alien nationals.’ This leads to a policy in which some groups of people shall enjoy the benefits of ‘full social inclusion,’ having become privileged with regard to the law in place, whereas others stand to suffer exclusion, separation, with their rights curtailed or restricted. In line with the ‘membership theory’ proposed by Juliet Stumpf, the positive rights arise from the social contract concluded between the government and the citizens. Those who are not part of the social contract, additionally being subjected to further actions taken by the government, are unable to claim any rights or positive rights equivalent to those enjoyed by the privileged ‘members.’ Therefore, the differences arise between the rights of citizens and the rights of non-citizens, the latter being much worse off in terms of their legal status than the former. Then the phenomenon of criminalization of legal provisions governing migration comes into being, defined by Stumpf as crimmigration, i.e. bringing together inherently different regulatory frameworks: criminal law (laid down for those who infringe the rules in force in a particular society, but at the same time functioning within that very same society), and the migration law (pertaining to non-citizens, or non-members of a particular community, whose only ‘fault’ consists in the fact that they just happen to have found themselves on the territory of a foreign state). A good example of such trends in Polish law may be the provisions of the Anti- -Terrorist Operations Act of June 10, 2016, and the amendments introduced into other laws in result of its adoption, including those pertaining directly to foreign nationals, as well as the regulations pertaining to the scope of statutory activities assigned to the state uniformed services. Generally speaking, this legislation differentiates between the legal status of the persons who are Polish nationals (enjoying the benefit of full legal protection), and the persons not vested with such a status, which may cause an infringement to the principle of freedom and equality before the law that stems directly from the provisions of Article 31 and Article 32 of the Polish Constitution, in conjunction with Article 37, Section 1, granting all persons under the authority of the Republic of Poland, inclusive of foreign nationals, the benefit of rights and freedoms guaranteed in the Constitution, and by other pertinent provisions of international law, as ratified by Poland. The right of every state to ensure the security of its citizens, also against the threats of a terrorist nature, may not be put into question. In the modern world, in which a series of conflicts that have been dormant for the last decade have just got rekindled, or brand-new ones started as a result of specific actions carried out by various countries, deploying adequate measures designed to counter terrorism effectively is absolutely essential. It should be borne in mind, though, that in the legal systems functioning in democratic countries, as much as the rights of the aggrieved parties (i.e. victims of a crime) are being upheld and protected, so are the rights of the perpetrators of such criminal acts. It should not be any different with regard to the perpetrators of terrorist acts, regardless of whether they just happen to be the citizens of the country in which they carried out a particular act of terror. A number of procedural constraints could be introduced with respect to such persons, or specifically structured modes of legal proceedings, but those should always be fully compliant with the minimum standards of human rights, as commonly recognized by the international community.
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