How the law defines and protects all those persons who are not designated as combatants or POWs – civilians – forms the focus of Chapter 6. It examines how the law protects civilians generally in armed conflict, and in particular ‘protected persons’ – those who find themselves in the hands of an adverse power as enemy aliens or in situations of belligerent occupation. Chapter 6 examines the rules that Occupying Powers must observe when, in international armed conflicts, they find themselves in temporary possession of territory that belongs to another sovereign State. The phenomenon of long-term occupation is also examined, as is the law regulating the treatment of civilians in non-international armed conflict.

This chapter examines the extent to which detention otherwise than as punishment for a crime is constitutionally permissible. Chapter 17 explained that only Chapter III courts may exercise federal judicial power, and Chapter 16 explained that punishment is an exclusively judicial function. There is a general presumption that detention serves punitive purposes. It follows that a federal law may not authorise the Federal Executive Government to detain a person for punitive purposes otherwise than as a judicially-imposed punishment. A body of case law has developed explaining the extent to which detention otherwise than as punishment for a crime is constitutionally permissible. The basic proposition is that detention for non-punitive purposes is not judicial in character, and that this remains so even if the conditions of detention are prison-like or harsh. Detention must be limited to what is reasonably necessary for non-punitive purposes, otherwise the presumption that detention is punitive in character will apply and render the detention unconstitutional. Most of the case law concerns immigration detention, but the general principles are not limited to that context.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

When arriving by boat in Malta from Libya, migrants encounter a strong state and legal framework that shapes their mobilities and journeys. This chapter brings forward migrants’ lives in Malta’s reception structures. It reveals how people experience mobility as a form of stuckness, influenced by bureaucratic techniques of governance.

Confinement is a prominent feature of migrants’ journeys through Libya and onwards to Europe. Turning to migrants’ experiences in informal sites of confinement and in government-run detention centres in Libya, this chapter foregrounds how forced immobility is a crucial part of processes extracting value from migrants’ lives. Through a dynamic I call ‘accumulation by immobilization,’ the chapter reveals how peoples’ mobilities become a locus for generating value.

The chapter begins with discussion of the definition of occupation, beginning of occupation, and the end of occupation. It then reviews the rights and duties of the occupying power under Hague Convention IV as customary law addressing public order and safety, security needs of the occupying power, amendment of domestic laws of occupied territory, prolonged occupation of territory and transformative occupation. The chapter then considers the use of lethal force in occupied territory, transfer of the ocupying powers population into occupied territory, deportation, detention and destruction of property. It then addresses the application of IHRL in military occupation and finally the analogous UN adminstration of territory.

This chapter discusses the protection of civilians against direct attack and the effects of military operations, and the protections should they fall into the hands of the enemy in IACs and NIACs under IHL and IHRL . The scope of the protection afforded is reviewed. The chapter goes on to consider its application in specific cases; the prohibition of arbitrary punishment, detention, internal displacement and deportation, sexual violence in armed conflict and SEA on the part of UN peacekeepers. The protection afforded to specific groups to wit children, journalists, UN peacekeepers and PMSC personnel is then examined.

While this book seeks to move past anecdotes and rhetoric by relying, whenever possible, on data and large-scale statistical analysis, it is important not to lose sight of the awesome deprivation of liberty suffered by the people reflected in that data. People incarcerated in prisons and jails are subject to a host of harms, including physical injuries inflicted by guards and other inmates. Many facilities offer poor access to medical care, and the cramped setting creates fertile ground for the spread of illness. One study of the health impacts of New York prisons found “a 2-year decline in life expectancy for each year served in prison.”1

This chapter investigates how the challenging questions and tensions caused by migrants and their universalist claims for inclusion, have been approached and resolved in liberal democracies. By regarding the development of populism as a real and dangerous political phenomenon that has significant traction, the chapter asks whether populism adds something new to this approach and resolution. More specifically, does populism add some distinctiveness that we should be more sensitive to? With reference to the requirement that the state has to provide justifications for measures that affect individuals, the chapter asks how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism, have been adjusted. It concludes that the adjustment has been in favour of exclusion and particularism. The concern that arises is that populism might further shape this adjustment to the point where the balance is completely tipped in favour of exclusion and statism. This raises general concerns about the nature of the community and its organizing liberal values.

This chapter argues that restrictions of migrants’ rights should be analyzed in a broader pattern, in light of democratic decay as it coincides with restrictive policies towards asylum seekers. In the event of a populist party taking over all the state institutions, as happened in Poland, migrants' rights cannot be considered in separation from the protection of human rights in general. Analyzing the Polish experience, it becomes apparent that the breakdown of the constitutional rights system results in a decrease in migrants' rights protection just as it does for other social groups. When it comes to the potential and limits of legal resilience in the migration context, the chapter claims that there is no such thing as inherent resistance of the law. The law cannot defend itself, since it is a tool of the ruling politicians. This means that a change in the approach to migration law in Poland is inevitably combined with a change in those who hold power. Therefore, what we are dealing with is not primarily a legal, but rather a political problem, which may be overcome not by legal means (the law itself), but by the will of the people expressed at elections.

Reagan, who won the 1980 Presidential election despite (and because of) outreach to Cuban immigrants, inherited the unresolved problem of the long-term rights of the new Haitian and Cuban immigrants. He responded by extending permanent residency rights to the Cubans but not to the Haitians: by (re)imagining the Cubans as refugees in the absence of evidence that they fled persecution. By conceiving immigrants as refugees, Reagan circumvented admission restrictions set by Congress. He also mobilized Cuban émigrés to suppress Leftist movements then challenging US hegemony in Central America, and allotted federal funds to transform Cubans into domestic lobbyists, well positioned to influence US policy when the Cold War ended under the George H. W. Bush Presidency. The two presidents granted Cuban Americans the unique right to admit Cuban immigrants. At the same time, they turned viciously on Haitians trying to flee violence and persecution in their homeland. The two presidents also reestablished the pre-Carter practice of blocking Haitians from US entry, and detaining and deporting those who managed to make it ashore.

The writ of habeas corpus is a legal tool with a complex relationship to carceral practices. The writ has functioned both to liberate illegally-detained individuals and to affirm the validity of underlying systems of legally-authorized incarceration. The so-called “Great Writ of Liberty” has thus survived and even thrived in a number of contexts where liberty interests have been systematically denied. Advocacy surrounding the use of the writ on behalf of non-human animals in U.S. courts has, however, tended toward aspirational, sometimes bordering on fantastical, accounts of the writ’s achievements in human justice contexts.

This chapter will introduce a corrective to this superlative vision of habeas corpus, its achievements in human justice contexts, and its potential for animal liberation. This study will argue that one well-publicized advocacy approach, taken most notably by Steven Wise and the Nonhuman Rights Project, overstates the writ’s accomplishments, often relying on an incomplete account of the writ’s history to do so. In particular, this account of the writ’s successes tends to paint struggles against racial violence and inequality as complete, thus minimizing the import of urgent ongoing justice projects. Next, a historical corrective is offered, demonstrating how closer attention to the writ’s actual role in human carceral systems can enrich our understanding of the writ’s limits and potential. This account will emphasize that the writ of habeas corpus operates only to challenge illegal (rather than unjust) detention; that it operates only at the margins of legal confinement systems to contain rather than eliminate carceral practices; and that it therefore serves a role not only in challenging individual instances of confinement, but also in sustaining and validating ongoing carceral practices.

This more critical picture of habeas corpus, however, does not strip the writ of its potential as an advocacy tool for the interests of non-human animals. This chapter will argue that animal advocates might join other social justice movements in adopting a more ambivalent embrace of rights litigation. It is possible, often necessary, for advocates to turn to legal tools without adopting an uncritical posture toward law. Indeed, as with other ambivalent embraces of rights—including historical uses of habeas corpus—litigation is often a critical tool in bringing political attention to social injustices. This chapter will propose that the greatest potential offered by the writ of habeas corpus is a focus on liberty that invites advocacy spotlighting the experiences of animals living within human systems of violence and confinement. It is this prospect of exposing and exploring the harms of human domination of other species—not any fantastical account of the writ’s human achievements—that gives habeas corpus its most meaningful transformative potential.

This chapter explores how human children soften the abusive edge of carceral spaces. Prisons, immigration detention centres, and zoos and aquaria are institutions that attract sustained public scrutiny from prisoner rights, migrant rights, anti-racist, and animal rights movements. Among other things, critics contest the messaging that these institutions and their proponents use to assure the public of the need for confinement and the ethical acceptability of the conditions captive animals and humans experience. These discourses, depending on the specific institution, highlight the larger public “law and order” interests of safety and border control, but also “progressive” interests of rehabilitation, conservation, and education. In highlighting these latter “progressive” interests, carceral institutions seek to humanize themselves and their work to bolster their social credibility. This “humane-washing” occurs through long-standing rationales about rehabilitation for offenders in the prison context, and more recent rationales about the conservation of nature and conservation education in the zoo and aquarium context. It also, I will argue, occurs through a specific type of marshaling of the human child. I apply a multispecies lens to consider how the real and imagined human child in the zoo and aquaria context, and narratives about what is in the best interests of human children in the immigration and prison context, figure into characterizing such carceral institutions as legally and socially legitimate spaces.