Migrants and Refugees at the European Borders: The Legitimacy of Suffering, Bare Life and Paradoxical Agency

Introduction

Scene 1. Port of the island of Samos, October 2015. On the esplanade of cement, and in the makeshift shelters built by the humanitarian agencies at the island’s main port, several hundred people have recently arrived. They have just crossed the Aegean from Turkey in frail wooden ships, or in inflatable boats mass-produced for the market of clandestine crossings and built only to last only a few hours on the sea. Many of those who wait there have been rescued by the Hellenic Coast Guard or by the Frontex patrol on the high seas or rocks in the midst of the waters. Some may have managed to reach the shore by themselves but found themselves trapped on the shore, due to the steep and rocky profile of the island’s coastline. In that case they were probably saved by a civilian team of voluntary divers, who are the best equipped for such operations. Or, they may have managed to climb up the cliffs and walk on their own into the wild, but got lost on the difficult terrain of the island until they were located by rescue workers. Even though it is the maritime part of Europe geographically closest to Asia —fewer than two kilometers separate the island from the Turkish coast— the rugged topography of Samos complicates the access to the island, making it a second-class destination, which, in turn, means that the facilitating networks for the crossing charge a cheaper price than, for instance, the gentle ride to the soft beaches of Chios.¹

In all cases and despite the difficulties they have just experienced, the travelers want to set off again as soon as possible: the moment they receive their permit for a temporary stay —thirty days for most, longer for the Syrians— they will book a ride on the next ferry to Athens and continue by land, via Macedonia, towards northern Europe. At first sight, there are no marked differences among them. However, they are subject to a classificatory system that assigns different priorities and means that some are able to travel onwards faster than others. Those who can prove that they are Syrian citizens fleeing from the civil war in their country benefit from a sort of fast lane: they usually leave within twenty-four hours of their arrival and sometimes even that same evening. Many of them are in a good economic situation and instead of waiting at the port, prefer to check into one of the hotels in the city center, the same ones that lodge personnel of humanitarian organizations, members of the Frontex, and foreign researchers conducting fieldwork. For Syrian citizens, continuing the journey onwards is relatively easy. The rest, for whom the procedures take longer, are taken to an internment center. Like those on the islands of Chios and Lesbos, these centers are in the countryside far from the city, which makes it difficult for the internees to keep in contact with the local volunteers who assist them and with the inhabitants and tourists of the island in general. One Sunday, I see how some local women bring them breakfast, as they started doing after they discovered that there was no food distribution on the weekends. The center consists of rows of pre-fabricated houses set on a sharp slope and surrounded by barbed wire. Only few men in uniform guard the place and the gates are open. Those who stay there are left to their own fate and the goodwill of the civil society.

Most of the people waiting there are from Afghanistan and Iraq. In contrast to the Syrians, their nationalities do not entitle them to be classified as people at risk almost automatically. They must wait a couple of weeks before receiving the permit to continue their trip —or a notification of denial. However, theirs are not the worst cases. The greatest uncertainty, and the slowest procedures, are endured by those who inhabit the lowest rung in the system which classifies the new arrivals, those who have been object of hostile treatment and racism in all the countries they have passed through, and sometimes even from other refugees: those from black Africa. Although they come from nations torn by war and violence, people from Sub-Saharan Africa have minimal chances of qualifying for asylum. Coming from an impoverished continent, they are regarded as people who “only” want to benefit from the welfare programs of the first world. Their motivations are not legitimate, insofar as they are not fleeing from wars widely covered by the media, but just “want a better life.” While the other internees crowd around the breakfast table, I see them talking among themselves, apart from the rest, in the shade of a tree. They are the most marginal of those who have been expelled from their homelands, the lowest variable in the complex filtering system that governs the route through the Aegean islands to northern Europe.²

The migrant seeking a “better life,” a life enjoying rights and a job in the country of arrival, becomes the object of suspicion. By contrast, a person who escapes from what is perceived to be a greater risk, and whose amount of potential or real suffering matches the media’s agenda, has a better chance of being accepted and can quickly³ leave the port and continue his or her way through Athens. The motivation is just to preserve one’s life. The production of this dichotomy has been at the core of the public debates in Europe since the mass arrival of refugees in 2015. They reveal a stratification of the legitimate right to access to the European Union, which is articulated according to a definition of the refugee’s status that emphasizes fear and vulnerability.

The European debate on the terms of the legitimacy of asylum has been unfolding since the 1990s, but reached a new dimension after the uprisings of what became known as the “Arab Spring” in 2011, when the number of people who tried to cross the Mediterranean in order to reach Europe began to increase, and later, in a notorious form, in the summer of 2015, when the massive exodus of Syrians escaping the civil war in their country reached numbers in the thousands entering European territory every day. The public discussions have posed as a main dilemma the question of how to distinguish between “legitimate” asylum applicants and (undesirable) economic migrants or other persons in transit. This article discusses the tension between these two figures as they are defined and discussed in Europe today. As follows, it analyzes the genealogy of the concept of the refugee as an object of humanitarian policies, referring back to the historical conditions in which this concept arose in the past century and its consequences in terms of the creation of a certain subjectivity. This figure is thought of in terms of the bio-political creation of bare life and in relation to the realm of mere biological survival into which illegalized border crossers are being pushed. In an attempt to go beyond the limitations of the category coined by the Italian philosopher Giorgio Agamben vis-à-vis agency, it shows how it is possible, also within bare life, to develop paradoxical modes of agency, and even resistance, by turning the state’s abandonment to one’s own advantage. Finally, it raises questions about the new technologies of border control and their consequences for the current EU border regime in terms of the creation of a certain kind of subjectivity. What kind of strategies, discourses and identities does a regime mobilize which favors the sufferer over the entrepreneur? And what is the significance of the resources deployed by the illegalized travelers in order to, first, cross the border and later, qualify for a legal stay by the paradoxical means of their disqualification?

The Refugee as Object of Humanitarian Management

Scene 2. In that very place, on the esplanade of the port of Samos, a great many travelers arrive and depart every day on the ferry services, which needed to expand their operations since, out of the high season, their normal runs were not sufficient to handle so many travelers. Many of those who wait have numbers written on their hands with a felt marker: 231, 456, 128. They are similar numbers to those painted in colors on the boats and ships confiscated by the patrols and piled up at the other end of the port, close to the office of the Hellenic Coast Guard. I see a woman (her outfit suggests she is from Afghanistan), with the number 348 written on her hand. She carries a small child in her arms, who has the number written on his forearm because the child’s hand would have been too small for it. The practice of identifying the refugees by writing a number on their hands was publicly criticized in the few cases when it was reported by the media. When it became known that people arriving to the island of Crete, in May 2015, were marked with numbers, it was blamed on the personnel of the Hellenic Coast Guard, who had already been denounced for abusing migrants, and who have the reputation of sympathizing with positions of the extreme right. When, in September 2015, it became known that officials in the Czech Republic had similarly marked refugees passing through their country on their way from the Balkans route, there was again public outrage, this time with explicit reference made to the tattooing of numbers on the prisoners in Nazi concentration camps. Now, in 2015, however, the marking of numbers on the hands of recent arrivals in the islands of the Aegean seems to be a routine practice in the context of the complex humanitarian assemblage of inter-governmental, governmental, European, and non-governmental organizations which handle the passage of the refugees through their ports. Such numbering allows for an initial classification of the mass arrivals as a strategy of emergency management, which a member of an international humanitarian agency justified, off the record, remarking that “those who criticize this practice have never been in the field; they have no idea what it is like to administer so many people. If we give them numbered papers,” she added, “they will sell them.”

Coming, as the above statement did, from a person who is trained in and accustomed to the logics of humanitarian management, the fact that people in transit pose a problem that has to be “administered” goes without saying. Nevertheless, the existence of international systems for the care of refugees is not something we can take for granted, but rather a historic creation resulting from concrete circumstances and needs. In addition to following the principles guided by those conditions and needs, the system produces a “refugee” who complies with certain characteristics. In this way, it permanently separates the “refugee” from those who are labeled and placed into other categories, like the “economic migrant” and of course, from the unattainable relative of both —the citizen with full rights. But how and when did the international system arise which regulates persons who are in transit or fleeing from their homelands?

Even though there have been cases of displaced populations throughout the whole of history, the refugee, as we understand him or her today, is clearly a twentieth century creature (Gatrell 2013; Haddad 2008; Malkki 1995). Awareness of the refugee phenomenon as the term itself emerged in the 1880s in the face of the exponential growth of their numbers (Marrus 1985), reaching a new dimension between the two World Wars, gave rise to treaties and techniques to deal with displaced populations (Skran 1995). After 1945, however, procedures standardized on an international level and have turned the refugee into a “social category and legal problem of global dimensions” (Malkki 1995, 498). Since then, the procedures of asylum have been globalized and the refugee converted into a social category and legal problem of global scope, thus giving rise to an international regime of asylum in the form of a set of legal rules, norms and agreements between states, whose regulatory framework has remained largely intact up to the present time (Gatrell 2013; Malkki 1995). It is not by accident that the codification of the concept of the refugee took place at precisely the same time that national states were consolidated in Europe. In the twentieth century, displacement was linked to the collapse of multinational empires and the emergence of the modern state as an ethnically homogenous entity. The codification and stabilization of the displaced subjects as refugees are intrinsic to and derived from the codification and stabilization of national states: it is modern international society, with its emphasis on territorial units with clear and concrete political borders, which has produced the refugee.

The 1951 Convention relating to the Status of Refugees (hereafter, the Convention) and the Protocol added in 1967 —which ends its geographical limitation to Europe and gives it a global reach— continues to be the conceptual referent and legal instrument for establishing who is a refugee. While most of the people who currently seek asylum in the EU and obtain permission to remain there do not fall within that category but under some subsidiary mechanism of protection, the foundational definition in that treaty remains in force. It states that the “justified fear of being persecuted” is the decisive factor in qualifying for asylum. According to the text of the Convention, a refugee is a person who:

The strict distinction between people entitled to the status of refugees due to persecution and war, and those in transit for other reasons, has been widely criticized from the standpoint of law, anthropology and political theory. However, this classic definition continues to be the main available instrument for obtaining protection and the crucial feature of the policy of asylum upheld both by the UN Refugee Agency (UNHCR) and most of the political class in Europe: solidarity with the refugees and harsh rule of the law for migrants without valid documents.

This split is reflected in the early division, on a supra-national level, between one organization charged with handling refugees (the UNHCR) and another responsible for international migrations, the International Organization for Migration (IOM), and expresses the framework of conflicts in which they were created. The IOM was founded in 1951 as a counterpart to the creation of the UNHCR —first under the provisional name of the Inter-Governmental Committee on Migration in Europe (ICME)— and as a reflection of interests of the West, Washington, above all, at the start of the Cold War. After the mandates of the organizations that preceded them expired, the UN Relief and Rehabilitation Administration (UNRRA, 1943-1947) and the International Refugee Organization (IRO, 1947-1950), the United Nations did not manage to reach an agreement for the mandate of the new international body (Elie 2010). Ultimately, two institutions were created, one designed to be responsible for the challenges associated with the refugees, the UNHCR, as a non-operational agency under the UN, and the other, the IOM, an inter-governmental agency focused on economic questions and created with the explicit support and financing of the United States, meant to be the operational body responsible for facilitating the international migration of “surplus populations,” including refugees, especially those from Eastern Europe. The original division of tasks already stipulates that one group deserves legal recognition due to its situation of risk, while others are subject to “management” when it is convenient for the needs of geopolitical agendas and labor markets. The IOM has been widely criticized, for, among other reasons, acting in the interests of its member states, and not those of the migrants, with little or no care for their rights and guarantees, but above all, for indirectly helping to strengthen the exclusion of certain groups of persons in transit (Ashutosh and Mountz 2011).

Beyond the institutional aspect, this genealogy allows us to understand how the Geneva Convention has codified the concept of the refugee in such a way that forcefully separates it from the economic migrant. This forced separation underestimates the manifold ways in which the two categories overlap. Since 1951, the number of refugees has increased and they can be found in diverse contexts. However, the Cold War policies and the dynamics of population movements soon created new restrictions on the recently universalized category. In fact, the emergence and categorization of the concept of the refugee in the post-war period were not only explained by a public awareness of the need to protect the displaced or vulnerable population. The preliminary discussions for the Geneva Convention also reveal how the definition of the refugee was also interwoven with the management of migratory movements and the need of some countries for more labor power. Didier Fassin (2016) points out that “generosity” has never been the main reason for granting asylum: on the contrary, during the two decades that followed the establishment of the Convention in 1951, the motivation for accepting persons seeking asylum was partly economic, a need for cheap labor to rebuild post-war Europe, and partly ideological, in accordance with the interests of the Cold War. With the collapse of the soviet regimes and the interruption of labor migration, both motivations lost relevance, while asylum seekers began to be treated with suspicion and even hostility at a time when the process of European integration was leading to the Schengen regime of free movement within the European community and the securitization of its external geographical borders.

Katy Long (2013) highlights the fact that in the decades prior to the Second World War, refugees were regarded as migrants, and the granting of asylum was wholly dependent on economic criteria, with the resulting failures to protect those who were persecuted. The creation of a specific category, different from that of the migrant, and accompanied by differentiated channels and mechanisms of admittance, contributed to the easing of this shortcoming but led, as a consequence, to the failure to find sustainable long-term solutions for the refugees, including the possibility of being able to support themselves and thus not dependent on humanitarian aid. At the same time, there has been increasing criticism of the way in which the categories and actions of the UNHCR itself have wound up operating as selective instruments for the exclusion of those who do not fit their definition of a refugee, and ultimately contributing to the criminalization of illegalized migrants (Ratfisch and Scheel 2012).

According to the needs at every specific conjuncture, the category of refugee has been employed and its scope enlarged or reduced in different ways, with the aim of differentially managing, controlling, excluding or including persons in transit, in a context in which it acquires a paradoxical moral superiority. At the same time, it makes more evident that the movements of refugees or migrants are often interwoven and question the validity of a definition of the “legitimate” refugee. The result is the indirect and symmetrical lack of protection of those migrants who do not qualify for asylum, even though they travel in conditions that are just as precarious and vulnerable, and often along the same routes and in the same vessels, guided by the same traffickers or agents, and must resort to the same strategies.

The differentiation between migrants and refugees does not take into account the many factors involved in what are known as “mixed migratory flows” and the way in which forced and economic migration are closely related and often indistinguishable, insofar as they are consequences to global inequalities on to complex and equally mixed forms of violence (Castles 2003). The contemporary movements of populations, particularly those who come from zones of conflict, are very complex phenomena. To trace a fixed division between migrants and refugees inside these movements is extremely difficult, since their stories exceed the seals of identification that are at the disposal of states and/or humanitarian bureaucracies.

The UNHCR acknowledged the growing challenge presented by the so-called “mixed migrations” but its purpose was to make recommendations about “entry systems that contain mechanisms to identify new arrivals with protection needs and to meet the needs of other categories of persons involved in mixed movements” (UNHCR 2011, 8). In the context of the mass arrivals in Europe in 2015, the UN Refugee Agency again sharpened its pencil to trace the line that clearly marks the difference between the two categories. According to the UNHCR: “The two terms have distinct and different meanings, and confusing them leads to problems for both populations,” since, for refugees, “it is too dangerous […] to return home”⁴ (UNHCR 2016). “Conflating refugees and migrants” the humanitarian agency warns, “takes attention away from the specific legal protections refugees require” and “it can undermine public support for refugees and the institution of asylum at a time when more refugees need such protection than ever before” (UNHCR 2016).

The legitimacy of the refugees is not intrinsic, nor is his or her right to asylum automatic, and, in fact, most people who may legally remain in the country they travel to can do so through some alternative mechanism of subsidiary protection (which in turn splits the principle of humanitarian protection into a multiplicity of regulations and is deployed in different ways in each country). However, the classic definition found in the Convention continues to be the only available instrument for international protection in a context of the policies of illegalization of undocumented migration. It is therefore not a matter of criticizing the protection of refugees in itself, but rather to highlight the lack of protection this category produces for other travelers due to its classificatory function: solidarity with refugees and harsh imposition of the law for migrants without legal papers.

This construction of the “legitimacy” of the refugee thus acts as a filtering device, leaving on the margin millions of persons in transit who do not fit into the legal definition, in the context of what Sandro Mezzadra (2014) calls a policy of “differential inclusion” set in the larger framework of a crisis of the nomenclature and taxonomies of migration. The interest of this article does not lie so much in the technicalities of both definitions, as in the premises and consequences of this dichotomy, as well as in the threshold of the definition of humanity which underlies each of them. The aim is to put forward the fact that the division between the migrant and the refugee has a specific genealogy, which needs to be understood in its historical context. This separation is neither ahistorical nor neutral or immutable, and what is underlying the so-called “refugee crisis” is actually a crisis of those definitions.

Aylan, Hyper-Victims and the Production of the Refugee as Bare Life

Scene 3. Screens of the globalized world, September 2015. While the term hyper-victim has been used in another context to characterize hyperbolic victims, those persons who, due to their extreme vulnerability and presumably absolute innocence, epitomize the characteristics of victimhood (González 1995), the most extreme manifestation of this figure in relation to our case of study was undoubtedly the media proliferation of the photo of Aylan Kurdi. The picture of the young Syrian boy dead on a Turkish beach —evoking innocence and passivity, and strikingly “similar” to any Western child— generated a global wave of empathy and, for a short time, it even seemed to soften the merciless European policies of border protection. In contrast to other pictures that have become iconic through the media, like those showing fragile boats overcrowded with young African men —who are depicted as troubling, if not directly threatening, and in any case clearly othered— here the audience was confronted with an image of absolute impotence and vulnerability. Indeed, African men are trying to change their destiny by undertaking a dangerous sea voyage. The dead boy, instead, was at the mercy of third parties, be those the wagers of war, traffickers who supply boats and lifejackets in a poor state, the boy's father, who exposed him to the lethal risk of the voyage, or those responsible for the European visa and asylum policies, which did not leave him any other option, depending on how to interpret the constellation of causes that led to his death. This photo aptly summarizes the paradox of granting visibility and access to rights through the exhibition of extreme forms of vulnerability. It illustrates how the asylum regime creates a context in which the qualification for international protection relies on extreme helplessness, and consecrates the moral superiority of the victim above the political or social actor.

According to Didier Fassin (2005), while refugees until the 1980s had the most legitimate status in the implicit hierarchy of foreigners and had benefited from relatively privileged conditions, the 1990s saw a shift in Western European asylum policy towards humanitarian protection that changed the framework of reception. Fassin describes how, in the past three decades, the migratory policies of Europe have become increasingly restrictive, and political asylum has lost most of its legitimacy while new criteria based on humanitarian claims have increased and become more important. Asylum seekers began to be identified as “illegal” immigrants and thus, candidates for expulsion, unless there were humanitarian reasons for reclassifying them as victims who deserved sympathy. The refugee, as a political subject or agent of history in accordance with the modern narrative, was replaced by the passive recipient of aid. In the 1990s, the French government introduced an exceptional series of humanitarian measures into the law on immigration, which granted legal residence to undocumented immigrants suffering from serious diseases who cannot receive an adequate treatment in their home countries, as well as to victims of gender violence and human trafficking. Miriam Ticktin (2011) offered a detailed explanation of how these clauses, presented as “apolitical” ones, have turned the suffering morally legitimate body into the primary subject of care. The bodies of workers who are exploited remain excluded; as Ticktin points out, it is the sick body that is now acknowledged as immigrants are granted rights in relation to their disability rather than their capacity as healthy and fit workers.

In contrast to the spiritual and aesthetic connotations of the exile, the seal of the “refugee” furthermore suggests a bureaucratized humanitarian realm (Malkki 1995, 513). The refugee in search of protection and humanitarian assistance is thus distinguished not only from the citizen and the exiled political activist, but also from the person who migrates in search of work opportunities, or, as the public discourse in Europe contemptuously puts it, for “a better life.” While decades ago the body of the refugee was legitimate for economic reasons and illness was regarded as suspicious, Fassin notes (2005) that the situation has now been reversed: the body turns out to be useless for work, since refugees are seldom granted employment rights, and illness turns the body into a social resource. In fact, until the 1970s, immigrants were workers whose labor power was needed to rebuild European countries after the war. Indeed, it was their capacity for work that qualified them for residence. Their bodies had to be healthy; illness, by contrast, was a reason for suspicion. With the modernization of industry, there was no longer much need for unskilled labor, due to the advent of sophisticated machinery, and their bodies became superfluous in most of the industrial sectors that had formerly needed a cheap labor force. In this new context, it is the suffering body that society recognizes and legitimizes. Instead of causing suspicion, in the case of France the sick body has become the most effective resource for undocumented immigrants, by virtue of which they acquire “bio-legitimacy.”

As in the case of the refugee, the humanitarian logic thus favors the production of a suffering and passive figure, the recipient of policies of assistance, over a figure with agency and self-determination. This characteristic is related to what the text of the Convention on the Status of Refugees calls “a justified fear of being persecuted,” that becomes a decisive factor in qualifying for asylum. The more needy and abandoned the refugee is, the more deserving of protection and rights. By contrast, agency becomes the object of suspicion. Peter Nyers (2006) explains how the establishment of a fearful subjectivity is critical in the process of creating and stabilizing the identity of the refugee. It is a subjectivity emptied of political agency. There are cultural expectations attached to those features and behaviors that demonstrate the “authentic” nature of the refugee in accordance with definitions and legal regulations, which equal silence, passiveness and victimization. Thus, according to Nyers, the refugee is constituted through a series of ontological omissions; lacking qualities that are present in the political subject, such as visibility, agency, and rational discourse. The conventional visual representations of the refugees also associate them to lack, invisibility, void, and speechlessness (Malkki 1996). With the removal of the political qualifiers, the label of “refugee” has come to denote a bureaucratic field of humanitarian intervention, with the resulting effects of depoliticizing that status and omitting the political and historical processes that gave rise to displacement in the first place (Malkki 1995; Nyers 2006). The life to protect is detached from the political existence of the citizen.

Based on the ancient Greek terms for “life,” Giorgio Agamben (1998) distinguishes between the qualified life of a citizen with rights (bios) and the mere biological existence (zoe). According to Agamben, modern (bio)politics creates bare life as an indeterminate state between the two. This liminal condition located between the citizenship of rights and the individual who lacks civil guarantees, a being closer to the ambit of “nature,” adopts changing forms according with the historical and conjuctural conditions and is also involved in defining the refugee. The separation between the humanitarian and the political produced by the institution of asylum is a (bio)political operation in itself: it constructs the refugees in terms of bare life, that is, as existences exposed to dangers and as objects of protection for the sake of biological survival. One characteristic of modern biopolitics is its need to constantly define the threshold that joins and separates what lies inside and outside of the qualified life. Humanitarian regulations and policies intervene in the creation of this tension between those lives that are politically relevant and those that only survive through their discourses, practices, technologies and bureaucracies. As we shall see, however, this is not a unilateral operation but a contested process always subject to negotiation and dispute.

Both in the case of immigrants in France who obtain a residency permit because of their sick condition or victimized status and the system that classifies and filters legitimate refugees and unwanted economic migrants on the frontiers of Europe, the qualification for access is obtained on the basis of vulnerability. In the context of what Fassin calls a proliferation of suffering figures, that is, subjects defined by the harm (or the risk) they might suffer, those who are persecuted or a victimized acquire a greater moral legitimacy than the migrant who is an agent of his own destiny and emigrates by his own choice.

The paradox of this humanitarian operation is that those who qualify for admission do so precisely in virtue of their disqualification, since their status is being degraded to that of a life to protect. Even more paradoxical and problematic is the fact that it is precisely the EU border, visa and asylum regime that drives migrants and refugees alike into an area of exposure or bare life, leaving them no other option than to undertake risky crossings at the mercy of the elements, turning them into potential object of humanitarian aid even before they embark on their journey. On the routes to Europe, it is precisely the techniques of security and surveillance that produce politically crafted exposure to the elements and to harsh geographic terrains, whether at the high seas or on the rocky cliffs of the Samos coast. Due to the closure of safe channels for petitioning asylum at embassies (or at least the establishment of a “humanitarian corridor” as demanded by many NGO), it is the EU border policy that pushes illegalized travelers into an area of naked exposure and to the limits of their own physical resistance, at the mercy of the elements and deprived of the rights of citizenship.

While for Agamben the condition of bare life implies abandonment or an exposure to the sovereign power, in the case of the EU maritime borders, the abandonment and exposure extend to the very force of the elements, a zone of “mere biological survival” due to its environmental hazards, where nature enters into the calculations of risk if the dissuasion policies. The displacement of unwanted travelers to high-risk zones is part of what Weber and Pickering (2011) call “governmental strategies of non-arrival” and extends as a dissuasive matrix along the borders of the global North and South. Supported by sophisticated technologies of detection, these strategies force the illegalized travelers to resort to routes that are more clandestine and difficult, thus increasing the duration and intensity of the dangers (Weber and Pickering 2011, 7). In that manner, as in the waters that surround Australia or the desert that forms the borderland between the United States and Mexico, the travelers are abandoned to the force of the elements, to “nature,” which is produced as an allegedly pre-social realm. Thus, deaths that are highly political, like those of Aylan Kurdi and the hundreds of children who have drowned before and since, are passed off as “tragedies” or “fatalities” and may be presented as humanitarian catastrophes that lack agency and responsibility.

Agamben’s category of bare life has been used in border and migration research to conceptualize the emergence of zones where the law is selectively applied and persons are deprived of citizenship rights (Buckel and Wissel, 2010; Vaughan-Williams 2012). Taking this characterization as a basis, I claim that illegalized immigrants are driven beyond what Agamben calls the threshold of animalization through abandonment, not to the arbitrariness of sovereign power but to the very force of the elements, to a zone of mere biological survival exposed to environmental hazards and physiological collapse. This displacement to a zone of vital exposure is consistent with a rhetoric that constructs the undocumented travelers in continuity and contiguous with the realm of “nature.”⁵ This characterization does not imply a reification of the forces of nature but, on the contrary, is aimed at highlighting the extent to which those forces can be exploited, politically mobilized, and intentionally included in the strategies of governability. The latter a political operation that veils the historic conditions in which “natural” phenomena exert their effects, which can be traced back to the context of colonial domination, as in the case of the droughts in India in the 19^th century analyzed by Mike Davis (2000).

Thus, it is the EU border regime that creates the illegalized travelers as bare life. However, that does not mean that the possibilities of contestation and agency are closed off. On the contrary, this is a condition in which other, unexpected, paradoxical, or desperate arts of cunning and resistance may arise.

Selling your Papers, Destroying your Boats. Agency and Resistance in the Bare Life

Scene 4, September 2013, Mytilene, (Lesbos). Abbas has arrived to the island from Turkey less than 48 hours ago and tells his story in the shade of the pines at Pipka, an open-doors reception center for refugees founded and maintained by local volunteers in a former children’s recreational center. He tells the story of his travel from Afghanistan. He has spent more than four months on the road and made six failed attempts to cross to Greece: he made it and managed to stay on the seventh try. Of all the crossings, he says, the most frightening time was when he and his fellow travelers punctured their own inflatable boat in the middle of the sea. Until the mass arrivals of refugees from Turkey in 2015, the traffickers used to give the travelers a knife before they set off for the islands, with instructions to puncture and destroy the inflatable boat themselves as soon as they are in sight of a patrol or near the coast. Thus, making their situation an emergency at sea, one in which the Hellenic Coast Guard is obliged to rescue them and take them ashore. The urgency of the condition of “man overboard” is deeply rooted in the Greek imaginary and imposes an unquestioned duty to save the person, regardless of other circumstances. No matter who he or she is, the shipwrecked person must be rescued and taken to dry land.

For several years, deflating one’s own boat for this purpose was something many travelers resorted to, as was confirmed by all the people I interviewed in the area, from the authorities, who regard it as a criminal act, to activists, who call it a “self-rescue operation.” The testimonies indicate that this action was not always effective in the face of the fearsome Greek coast guards, who have been accused of severe abuses towards border crossers on high seas and denounced for further destroying their boats and aggravating their situation. In fact, the practice of deflating the boats has been increasingly abandoned, first in presence of women and children on board, and, later, altogether due to its relative ineffectiveness, on the one hand, and, on the other, in view of the massive influx of persons during the summer of 2015, which radically changed the situation in the Aegean. My interest here, however, is not to assess that practice in terms of its ethical aspects or instrumental effectiveness. Rather, the aim is to analyze it primarily as an expression of the ways in which the scenario where illegalized travelers have to undertake the crossing to the Schengen zone is being constructed, and its implications in terms of the ways in which Europe’s borders are being symbolically defined. What does it mean to put one’s own life at risk in order to being admitted to Europe through a rescue operation? What does that say about the borders of the European Union?

The European border, I claim, is constructed as a line along which the exposure to and survival in a condition of bare life is being produced and negotiated. In more than one sense, the travelers are being displaced into a kind of “state of nature.” Exposed to the arbitrariness of the trafficking networks and the coastal patrols of the European countries or Frontex, those who cross this northern part of the Aegean may wind up in other parts of the Turkish coast or in uninhabited islands, where they may have to survive in the open, feed on wild plants, and light fires to keep warm or alert fishermen in the area about their presence. This abandonment pinpoints the core of what is ultimately at stake on Europe’s sea borders: the conversion of citizens into bare life, mere biological existence, whether if to leave them to their fate or to rescue them as objects of humanitarian intervention. In the words of Foucault (1990), these travelers do not die as a consequence of a direct execution but due to a power that manifests itself through the faculty of “making live” and “letting die.”⁶ Hence, as pointed out by many, the paradigms of humanitarization and securitization are neither opposed nor contradict each other, even though most media outlets and politicians continue to present them as such.⁷ The humanitarian and the security approach towards borders are not only compatible but also mutually complementary, since they are both based on the production of the illegalized immigrants as bare life and reproduce, in the end, a biologicization, de-historization and de-politization of the migratory processes.

Of more interest here are the consequences of this operation in terms of agency and the way in which this division between a qualified existence and a “natural” life is questioned, negotiated, redrawn, and even reconverted by the travelers in their own favor. The action of destroying their own boats in order to force the patrols to rescue them reveals the paradox of making the danger even more extreme, for the sake of being rescued. As if it was precisely the abyss of abandonment into which they are hurled as bare life the last resort available to them within their narrow margin of action. It is thus not as citizens with rights, but as a threatened biological life, that they become object of humanitarian protection.

In 2013 at Pikpa, almost no one is carrying a passport or identity document. As an activist who helps them during their passage through the island explains that, they usually scan their documents and send them to their own e-mail in-box, so that they can print them when necessary. Meanwhile, they travel without any civic affiliation, but which accompanies them in virtual form on the cloud. They will probably continue with this practice for years, even inside the Schengen space until they manage to regularize their administrative situation. Meanwhile, they prefer to be pure bodies in flight: without a name, age, affiliation or nationality recorded in any register. If they consciously get rid of the tie of citizenship when they cross the border, it is because they know that this is their only way to receive humanitarian protection⁸ and avoid being registered in the databases that regulate the European asylum policy.⁹ If their national documents are not valid to qualify them for a legal entry, it is better to dispose of them, since they will only be a burden and facilitate deportation. The refugees board the boats without their documents or any other indication of their civic identity. They may have also done away with their family links and created alternative kinships, which are not more or less “fictitious” than their biological ones and have arisen during the urgencies and needs of the journey.

Once on European soil, they will be examined by doctors and may be assigned a number —noted on a piece of paper or written on the hand— and thus become part of a list which will re-inscribe them into the bureaucratic procedures undertaken by humanitarian organizations and police controls. Agents of the Frontex, or personnel trained by them, will do the “screening” aimed at determining their “true” identity, nationality and age. After that, they will continue on their journey to the north of Europe, entering into and leaving the complex structures of civic inclusion which involve going through successive stages of statutes and permits that, little by little, will change their status from that of objects of humanitarian management to a recognition, not as citizens but as refugees or, most probably, as recipients of some kind of subsidiary protection. On this journey, civic inscription and de-inscription turn into a game of resources and opportunity, and bare life becomes a paradoxical tool of negotiation.

Inspired by Deleuze’s theory of nomadism, Papadopolous and Tsianos (2007) explain how in migratory contexts persons may “dissolve” their identity as a means of resistance. What characterizes the nomad, they claim, is not his passing through gates, borders, obstacles or barriers but his sliding through the territory: the path of the nomad does not go anywhere, he does not leave any trace (Papadopoulos and Tsianos 2007, 224). It is a political practice in which the social actors elude standardized representations and prefer to reconstitute themselves and transform their material conditions of existence. For Papadopoulos and Tsianos, migrants and refugees change their identities in order to maintain channels of material and subjective mobility. They strategically transform themselves, resort to animal metaphors to cross borders, and permanently adapt their practices and alliances. Instead of claiming a system of rights, the authors say, persons in transit create instances of flight, of becoming and of de-territorialization, capable of subverting the systems of national sovereignty, identity and representation within which there is a need for a legal framework of rights.

In this interpretation, the modes of nomadic becoming are what guide the migrants embodied experiences: a becoming animal, amphibian, imperceptible, as volatile transformations that elude the pervasive policy of representation, rights and visibility (Papadopoulos and Tsianos 2007, 224). In addition to questioning the classical interpretation of migration as a unidirectional process with a fixed and intentional objective, suggesting instead a nomadic wandering that does not acknowledge borders, barriers or obstacles, these authors argue that such a “becoming animal” is “not simply a metaphor for transactions in the current regime of mobility” but it is “the cipher for the corporeal substratum of transnational migration in times of a global regime of forced illegality” (Papadopoulos and Tsianos 2007, 226). It is what they call a strategy of de-identification, a voluntary “dehumanization,” since it breaks the relation between a person’s name and body: “a body without a name is a non-human human being; an animal which runs. It is non-human because it deliberately abandons the humanist regime of rights” (Papadopoulos and Tsianos 2007, 227). It goes beyond burning one’s papers,¹⁰ they maintain: “becoming animal is essential to mobility,” as are “becoming woman, becoming child, becoming elder, becoming soil, becoming fluid” since “these movements are the migrants’ answer to the control of their desire” (Papadopoulos and Tsianos 2007, 227). They transform their physical makeup, their bodies, voices, accents, hair, color, height, gender, age, and biographies. Destabilizing the link between body and identity is part of the skill of migration, one that opens the way to new, untamed subjectivities.¹¹

It is not necessary to attribute such a rebellious intention to the migrants in transit (their actions are often indeed a matter of concrete, situational strategies to advance one’s own mobility) to understand that we are dealing, in fact, with resources that affirm one’s own self-determination. As Nyers (2006) writes, even though the refugees are not regarded as political actors —since this is supposedly the exclusive prerogative of the citizen— they continually show political agency. In that agency, however, their bare life is often the only weapon that is available to them and the body becomes a battlefield and weapon of resistance at the same time. The paradoxical feature, in any case, is that agency draws on precisely the elements which consecrate its de-inscription. Just as the biomedical diagnosis of suffering turns into a strategic resource in the French case (Ticktin 2011, 12), biological existence may be the last resort available for action. The asylum seekers who defend their squatted houses by threatening to jump from the roof or those who sew their lips together as an extreme way of calling attention to their political silencing are also putting their life or physical integrity on the line in a radical way.¹²

Agamben’s ideas have been criticized for assuming a binary opposition between the citizenship of rights and a biological existence, as well as for ruling out the possibility of agency within the bare life. Admitting that these are indeed flaws in the theory of the Italian philosopher, and then looking at the resistance that takes place at the level of practices, it becomes clear that in no way does the condition of bare life remain a unilateral or unchallenged position. Neither bio nor zoe should be regarded as fixed categories, but as two poles in a stratified range of statutes; nor should bare life be seen as a realm where there is no margin for action. The border regime may push unwanted travelers to a zone of bare life, but those who are detained are by no means passive recipients of policies. There are usages and practices among which the practice of destroying one’s own boat is perhaps an extreme but not an isolated example.

The migrants who deflate their boats in order to bring about a rescue operation are putting their own survival at risk, since the channels of legal entry to Europe have been closed. Driven into bare life, they reverse that condition in their favor. Like a prisoner on a hunger strike, they wager all that they are left with: their biological existence. Radicalizing their vulnerability even more, they risk their own life and physical integrity. Thus, the slide into bare life does not only turn out to be a strategy of the powerful but it may be reused and resignified in terms of defiance and resistance. Even suicide can be seen as the ultimate act of affirming one’s dominion over the own life, whether it is out of desperation or as a final gesture of freedom, as Hannah Arendt wrote in an essay whose title (“We, refugees”), seeks to affirm, in the first person, the strong subjectivity of the refugee: “not being free to create our lives or the world in which we live, we nevertheless are free to throw life away and to leave the world” (Arendt 1994 [1943], 113-114).¹³

The Future of Border Control: Biometry, Mobility and Vulnerable Subjects

Scene 5. Conference hall in a hotel of an international chain. Rome, February 2016. In a residential district of the city a conference on technologies of border surveillance and control is taking place. It is organized by a British armament corporation and gathers together military and civilian authorities, along with suppliers from a variety of companies in the “security” sector. Among the speakers there are senior officers from the navy and border guards from Italy and Spain who talk about the challenges and achievements of their work, representatives of the industries which offer their “solutions,” officials of the United States government who present their own version of border controls, and the director of Frontex himself, representing the European border agency. The participants are in agreement as to the interpretation of the “problem.” For the most part, their positions coincide and they repeat, over and over again, the need to distinguish between the “legitimate” refugee and the “economic migrant.” Just as in the reports of Frontex, the latter are always mentioned as being in the same category as human traffickers, smugglers or terrorists: they undertake illegal activities and are the main target of the surveillance devices exhibited here for sale. When they talk about migrants, the speakers systematically defame them, saying that “they are only looking for a better life.” The term equates them with delinquents and is pronounced in a derogatory tone. The conference attendants say “a better life” as if they were using a dirty word, spitting it out. To migrate is not only an illegitimate aim, but, it seems, also a despicable one. As if narrating the plot of a cowboy movie, the representative of the U.S. Department of Homeland Security calls the undocumented border crossers the “bad guys.” An official of the IOM, who might have been booed if he were speaking to another audience due to this organization’s complicity with anti-immigration policies, is the only one here who says something about the experience and subjectivity of the migrants. He tries to explain the complex web of “mixed” motivations that drive the travelers and points out that “no one puts his child on a fragile boat and undertakes a dangerous voyage unless the place he comes from is more dangerous than the sea.” An indignant Italian admiral accuses him of using emotional blackmail against the audience.

For those who develop, sell, and apply these technologies it is a given that the “illegal” migrants must be detected and prevented from crossing the borders. The civil society’s demand that the authorities should at least distinguish those who have the right to apply for asylum implies a further difficulty. The terms of asylum configure the filter of selection and indirectly assume that the “economic migrant” should be delegitimized and sanctioned. At a time when the very validity of the Convention is being questioned in Europe, and in the face of a grave situation for refugees on the continent, it may not seem timely to question the only available instrument capable of granting some degree of protection to the hundreds of thousands of people in transit.¹⁴ However, or precisely for that reason, it becomes relevant to point out at the structural flaws of that category and to consider the classifications it implies as well as the misadjustments of its definition to the current global mobilities. Crafted originally in order to deal with the specific needs of a historic situation, this regulation does not sufficiently take into account the structural, systematic, and permanent nature of the situation faced by displaced populations, as one of many other contemporary forms of expulsion (Sassen 2014).

A special section of the conference is devoted to biometry and its use in identifying people at border control posts. The technologies already in use or at an experimental stage include facial recognition, the scanning of the iris or the venous structure of the palm, behavioral patterns (like the way a person walks), voice recognition, or even the old-fashioned fingerprints, all of them ways to attach a fixed identification on a travelling body. As these techniques of control are enhanced, not only will the flow of so-called bona fide travelers through international airports and other high-traffic borders become more fluid, but it will be more and more ineffective for people to resort to forged passports, false documents or even no documents at all, as illegalized travelers en route to Europe now may do. If the passport is one’s own body, there is no way of escaping from that inscription. New means of control and resistance will turn the human body into the future battlefield.

Among the participants there is also a representative of the company that has supplied the UNHCR with a system of biometric identification for refugee camps. The UN Refugee Agency has begun to introduce these technologies to register the populations under its administration, explains the provider company, as a response to the challenge of “quickly and accurately identify(ing) a constantly changing population of forcibly displaced people in its camps worldwide.” These biometric tools, which are certainly more sophisticated than marking numbers on the hands of the recently arrived persons as was common on the Greek islands in 2015, will thus enable the agency “to better manage its global refugee population.” The “Biometric Identity Management Systems” (BIMS) adopted by the UNHCR offers it as “a centralized data base for identity management,” that “rapidly registers, de-duplicates and verifies the identities of refugees, ensuring that the right people receive assistance where and when they need it.”¹⁵ Thus, technological innovations are put at the service of obsolete political definitions, while the category of the refugee continues to reproduce the involuntary, systematic and indirect “blaming” of millions of persons in transit who cannot prove they are being persecuted and reproduces, on the level of the imaginaries, references inherited from the second half of the twentieth century in terms of suffering, fear, passivity, and docility.

In the search for alternatives to organize the means and timings of their journeys and affirm their own self-determination, illegalized travelers have learned how to rely on precisely those elements made available to them by way of their de-inscription. As argued above, these alternatives may take the extreme form of destroying one’s own boat in order to be rescued or the more banal one of selling the paper with the number assigned to them when they reached the port of Samos. The subjects who freely decide to exchange a resource available to them (e.g. enough time to wait for a number assigned later on) for a possession they lack (e.g. money) subvert the administrative efforts of the humanitarian agencies and make use of the narrow margin of action at their disposal. What turns out to be paradoxical, in any case, is that the aspects that certify this exclusion, the condition of bare life, are precisely the ones that people on the move can set into play in order to manage the terms of the own mobility. No less paradoxical is that in order to gain access to the country of destination, values like the willingness to work, a desire for self-improvement, robustness or vitality no longer count as qualifiers for access, but rather are the indicators of destruction and danger in the own country, physical and psychological damage, fear or social and family disintegration.

Meanwhile, the biometric controls are reconfiguring the terms in which migrants and refugees will have to engage in their struggle for the right to autonomy and freedom of movement. The abovementioned strategies of detaching the body from its identification, which have been deployed under the regime of paper documentation, may soon become obsolete. In this context, it becomes necessary to reflect on how the biomectric technologies bring about new means of subjecting and modulating the individuals’ mobility, as well as the subjectivities that they promote and the new spaces for agency and contestation that they may open; a challenge that concerns migrants and refugees, citizens and victims alike. The biometric technologies of border control displace the clandestine migratory practices onto new territories and raise new questions in terms of the possible margins of resistance (Scheel 2013). At the same time, with their reliance on the registration of indicators which are unique, constant and fitted to the individual, the logics of biometric control relate the refugee, the migrant, the precarious worker, and the citizen, subsuming all of them under the same principle of governmentality.¹⁶

Finally, it is relevant to raise the question about the subjectivities being promoted by the current border and asylum regime. Subjects fearful or victimized, survivors of “disasters,” may indeed become a docile future labor force, after being disciplined by the hardships endured on the way to Europe, and may thus be more willing to accept precarious conditions of work. Despite the insistence on separating the refugee from the “economic migrant,” the calculations of workers an aging Europe will need in the future are not completely detached from the discussions about whom to grant the right to asylum. Originally separated from other figures of precariousness, who equally inhabit spaces of little civic protection or high exposure to violence and inequality, the refugee should now be thought of precisely in terms of the possible intersections, kinships, and potential alliances with those other modes of existence in vulnerable conditions.

Acknowledgments

The research for this article was supported by the Center of Excellence “Cultural Foundations of Social Integration” at the University of Konstanz, funded by the German Research Foundation (DFG), in the framework of the excellence initiative of the federal German government. The interviews in Greece mentioned here were held in English and Greek, in this case with a translation into German by Anna-Katerina Kalouli. I would like to thank the editors of this special issue and the anonymous reviewers, for their comments on and contributions to a previous version of this text, as well as Carla MacDougall for the style revision of the English translation.