Chapter 5 Law, policy and the state: accountability for adverse consequences, criminal activity and corruption

Developing perspectives on policy outcomes

The lack of published policy documentation, coupled with the opaque process of externalisation, forces an analysis based on the empirical facts of implementation, rather than trying to second-guess any potential intent behind it. This objective focus on the actual outcome of the policy moves away from more subjective approaches that may deal with intended or unintended consequences (for example, Cornelius 2001, 2004, Cornelius et al. 2004) and offers insight into foreseeable adverse consequences. If intention is taken from the declared policy objectives, then conjecture must be relied on to distinguish what may be unintended based on their exclusion from these, rather than on any explicit declaration about what is unintended. The objective approach is highly appropriate as it opens up an opportunity to move away from such subjectivity, to evaluate the policy’s adverse outcome on human rights, organised crime activities or the state, and to analyse how and why such outcomes could be foreseeable.

In the previous chapters, morphogenetic analysis exposed some of the hidden causal mechanisms in the development of organised crime’s role in migration. This chapter examines in a sequential manner the role the state plays in relation to each of the situations in those chapters. It would be incorrect to assume that the state is just a static structural force or that it serves only as a structure; it possesses agentic properties that precipitate changes in other structural and contextual factors. With regard to migration, such properties are most apparent in decision-making, policy implementation and the enforcement of migration controls. In the context of organised crime, they are found in state action and inaction in delivering effective law enforcement and addressing impunity and corruption. States’ decision-making results in policy events, and in the production and reproduction of structural and contextual factors. These, in turn, shape future policy outcomes, migrant agency and the development and activities of organised criminal groups. As well as providing new insight into the role of the state, this chapter tests how the morphogenetic framework can be used as a model to better understand the foreseeable nature of adverse consequences or to identify potential adverse policy outcomes in future time. Having a perspective that is “not only dualistic but sequential”, the framework can be used to analyse successive iterations where “subsequent interaction will be different from earlier action because [they are] conditioned by the structural consequences of that prior action” (Archer 1982: 458).

Adverse policy outcomes and policy gaps

Rather than addressing migration within the broader context of social transformation and globalisation, state policies approach it as a discrete problem to be solved and inasmuch “often fail to achieve their objectives, or even bring about the opposite of what is intended” (Castles et al. 2014: 317). When states create policies that penalise immigration and conceptualise migration in rigid terms, the resulting policies are repressive and reinforce a one-dimensional approach, failing to address the broader causes of migration. Enforcing policies is futile, and some claim that “ineffective and ‘symbolic’ immigration control measures” are perpetuated as political posturing to placate the public and provide an image of control (Cornelius et al. 2004: 42). Furthermore, such policies are not aimed at addressing immigration in a meaningful way by addressing the structural factors but are designed to be highly visible and punitive. Repressive policies are therefore often ineffective in stemming immigration, but have a significant impact on its composition, “pushing immigrants towards a clandestine existence that leaves them economically exploitable and vulnerable” (Massey et al. 2008: 288).

The nature of irregular migration is particularly affected by states’ reliance on “policy instruments with inherent flaws that fail to deter unauthorised immigrants and asylum seekers but produce serious unintended consequences” (Cornelius et al. 2004: 7). Contemporary policy approaches have thus resulted in “the convergence in the policy instruments chosen for immigration control and widening gap between the goals of these instruments and actual immigration outcomes” (Massey et al. 2008:288, see also Cornelius et al. 2004). There are three types of policy gap: the ‘discursive gap’ or ‘discourse gap’, which is the gap between official discourse and policy; the ‘implementation gap’, which is the gap between a policy and its implementation in practice; and the ‘efficacy gap’, which is the gap between policy objectives and actual policy outcome (Czaika and De Haas 2016: 35, Schmoll 2016: 365). There are two core ways in which these gaps manifest: as ‘unintended consequences’ and as ‘inadequate implementation’ (Cornelius et al. 2004: 17–19). Given their general inefficacy, commentators have questioned the genuine motives for restrictive migration controls, asking whether they are a “quixotic or credible quest for control” (Castles et al. 2014: 238) and suggesting a deliberate gap between policy and implementation (Cornelius et al. 2004, Massey et al. 2008, Bigo 2004).

The externalisation of migration controls and the transit state

Transit countries are increasingly important in debates about policy and the externalisation of migration controls. Just as irregular migrants are defined by their exclusion from laws, transit countries are conceived in relation to destination states, being defined by geographical coincidence and patterns of movement that are the only option for migrants, due to lack of regular channels and the economic means of the migrant (Düvell 2006, Velasco 2009, Cholewinski and Taran 2009, Hess 2010). Parallel to the development of restrictive migration policies in destination states, the notion of the transit state rather than transit country has developed, denoting “recognition of the State’s growing role, instead of being [a] passive actor in the migration in the transit routes” (Sahin-Mencütek 2012: 142–3).

The term ‘transit state’ denotes its presumed role in controlling the flow and as a site for externalisation and is “a geopolitical label which implies external interference (e.g. the externalisation of migration policy) and constructs something somewhat other from the traditionally integral state” (Hess 2010: 9). Destination states use their political weight and influence to pressurise transit states to externalise their migration policies through bilateral agreements, the implementation of restrictive immigration controls and the apprehension and deportation of transit migrants (Kimball 2007, Sahin-Mencütek 2012). Transit states are thus “re-conceptualised from being a descriptive idea in geography to becoming a tool of governance” (Oelgemöller 2010: 416), where “bordering measures such as detention, e-bordering and forced movement are intensely implemented” (Schmoll 2016: 364). Despite the mixed flows in transit, “control measures – be they interceptions or visa measures – rarely include adequate procedures for distinguishing those who need protection from those who do not” (Schmoll 2016: 367).

International norms of protection may also induce destination states to externalise their border controls because once irregular migrants are on their territory, they have duties and responsibilities to them under international law (Kimball 2007). As states externalise their migration policies, so too do they externalise their human rights responsibility to transit states that may not have the capacity to implement protection. This causes two specific issues for protection. Firstly, despite talk of ‘burden-sharing’, transit states are largely responsible for the administrative and practical challenges that are presented (Kirişçi 2004, 2007, Verduzco and De Lazano 2011, Sahin-Mencütek 2012). Secondly, political pressure from the destination state/s to prevent the passage of migrants through the transit state – for instance by deporting them – may conflict with the human rights obligations of transit states (Kirişçi 2004, Kimball 2007, İçduygu and Yükseker 2010, Sahin-Mencütek 2012). It is this dilemma between states’ sovereign interests and migrants’ rights that is at the heart of migration, but this is further complicated by political pressure in the context of externalisation. Situations of forced migration present particular challenges and dilemmas for the transit country, resulting in deep tension in the political relationship with the destination state and human rights obligations to those on its territory, and affecting its own sovereign right to decide who is authorised to be in its territory.

Mexico has long been both a country of origin and of transit for people migrating to the US but, since 2001, socio-political events and narratives on security resulted in increased securitisation and externalisation of migration policies that have turned Mexico into a ‘vertical border’ for its northern neighbour (Knippen et al. 2015, Frelick et al. 2016, Hiemstra 2019). The externalisation of US migration policy has played a significant role in harm and human rights violations during transit because the Mexican state “legitimises the implementation of regulatory and repressive policies – framed as securitisation – that, in effect, allow new forms of violence to flourish” (Vogt 2013: 771). In this context, “extra-territorial migration policing practices extend US power while simultaneously obscuring and eluding responsibility for violent consequences of this policing” (Hiemstra 2019: 46). Under Plan Frontera Sur, Mexico became the site for a new iteration of externalisation tools to prevent people from reaching the US border.

State accountability

There are three aspects of state accountability that are particularly relevant here: accountability for the adverse outcomes of migration policy; responsibility for human rights violations resulting from the externalisation of migration controls; and state responsibility for acts of criminal groups. This section will look at each of these aspects in turn.

The first of these aspects is the state responsibility for the adverse outcomes of border control and migration policy. Although states have the sovereign right to control their borders, “they are also under a duty to establish and take into account the foreseeable impact of frontier control on human lives and human rights” (Grant 2011: 69). Nonetheless, commentators note the adverse consequences of migration controls on indirect violence, arguing that states must be obliged to identify and mitigate the foreseeable adverse impact of policy and border control (Koser 2005, Spijkerboer 2007, Grant 2011, 2016, Weber and Pickering 2011, Slack and Whiteford 2013). Lines of debate have opened up around state responsibility for policy-related migrant deaths and the ‘unintended side effects’ of border control (Grant 2011, 2016, Weber and Pickering 2011, Michalowski and Hardy 2014). Grant (2011, 2016) details the human rights obligations of states to mitigate such deaths and harm to migrants, especially where they are foreseeable and where states are aware that controls and policy will increase risk. Weber and Pickering (2011) trace lines of accountability for policy-produced deaths and indirect violence, noting that similar lines of accountability could also be traced back from certain incidents of direct violence. Policies with foreseeable adverse consequences that precipitated such violence have been knowingly implemented, which some commentors claim could be a state crime (Weber and Pickering 2011, Michalowski and Hardy 2014).

Secondly, there are complicated issues regarding state responsibility for both the destination and transit state that arise when rights are violated as a result of the implementation of externalised migration controls (Gammeltoft-Hansen 2014). A state incurs responsibility when a violation happens within its jurisdiction or is perpetrated by its state agents – thus, responsibility would be borne by the transit state. Nonetheless, the destination state could potentially bear some responsibility because a state that knowingly “aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so” (Articles on Responsibility of States for Internationally Wrongful Acts, ARSIWA, Art. 16). Although analysis of the externalisation of migration controls (Podkul and Kysel 2015, Frelick et al. 2016) provides valuable insight into the types of rights violations that result and acknowledges the applicability of this rule (Frelick et al. 2016: 197), it has not yet offered deep examination of state responsibility beyond the core rule. In principle:

Destination states pursuing border externalisation strategies may come to be responsible (as a matter of international law) for rights violations outside of their own territory, as at a minimum they are responsible when they exert control over the acts of third countries. (Podkul and Kysel 2015: 10–11)

This raises questions about what level of control is invoked by different instruments or forms of externalisation, and how to evidence this.

McNamara (2013) considered state responsibility for the externalisation of migration controls by member states of the European Union, examining the nature of different instruments and the amount of control they exert in implementation. Distinguishing between ‘externalisation’ (where the destination state has direct control of its border management within a third state) and the ‘external dimension’ (the indirect implementation of destination state policy) of controls, he argues that most instruments will fail to satisfy the threshold for ‘effective’ control. In the case of instruments with an external dimension that are not directly implemented by the destination state, “[c]ontrol to a level below ‘effective’ control is still held by the State” where the controls are implemented (McNamara 2013: 324). Although literature on state responsibility examines destination state responsibility (McNamara 2013, Podkul and Kysel 2015, Frelick et al. 2016), there is lesser consideration of transit state responsibility or conceptualisation of human rights violations beyond increased indirect violence or the actions of state agents during apprehension and detention.

The third aspect of state responsibility that is pertinent here is state responsibility for the acts of organised criminal actors. Some studies have started to evaluate how international human rights law can be used to explore aspects of state responsibility for the acts of organised crime (Gallagher 2010, Hauck and Peterke 2010, 2016, Gallagher and David 2014, Guercke 2021), the state as an actor within international criminal law (Obokata 2010), and corruption related to organised crime as a state crime (Gallagher 2010, Gallagher and David 2014). Witte and De Vos (2016) evaluate responsibility for the widespread and systematic violence of both state and non-state actors as crimes against humanity, arguing that large organised crime groups, such as the Zetas, are ‘organisations’ within the International Criminal Court’s definition, and thus bear responsibility. To draw parallels with responsibility for the acts of other non-state actors and to frame the human rights implications, commentators have drawn on principles under international human rights law (such as due diligence), on ARSIWA,⁸ and on comments from treaty-monitoring bodies and rulings of international courts regarding non-state actors (Hauck and Peterke 2010, 2016, Gallagher and David 2014). One such clarification notes that the principle of due diligence obliges states to “take adequate preventative measures in order to protect individuals against reasonably foreseen threats of being murdered or killed by criminals and organized crime or militia groups” and to “take reasonable, positive measures … in response to reasonably foreseeable threats to life originating from private persons and entities whose conduct is not attributable to the State”.⁹

International courts have become progressively more expansive in their interpretation of state responsibility for non-state actors. In 1986 and again in 2007, the International Court of Justice (ICJ) ruled that state responsibility stemmed from effective control, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) departed significantly from this and ruled that overall control was sufficient to denote state responsibility.¹⁰ Although these rulings address armed groups within the context of justifying the use of force against them, much of their reasoning is valid for examining other non-state actors, and commentators (Gallagher 2010, Hauck and Peterke 2010, 2016, Gallagher and David 2014) have relied on these to examine some aspects of state responsibility for organised crime. However, one problematic element of these court interpretations of state responsibility for armed groups as non-state actors is that they do not account for factors pertinent to organised crime and their strategies for criminal governance (see Introduction) – such as state corruption, complicity and collusion with such groups, impunity for their actions – or for criminal groups’ lack of explicit political objectives (other than to maintain territorial control). These specific aspects of organised crime could add significant depth to arguments about state responsibility. Gallagher (2010) and Gallagher and David (2014) have started to address the corruption element of this, drawing on ARSIWA¹¹ to consider state responsibility for corruption related to people-smuggling and human-trafficking. They explain how such acts are attributable to the state and that the unauthorised or ultra vires nature of the acts of state agents does not lessen state responsibility.

Guercke (2021) applies human rights law to examine the extent to which states might be held responsible for failing to prevent acts that violate the right to life perpetrated by organised crime groups in a context of widespread criminal violence, such as is seen in parts of Mexico and Northern Central America. They note that the situation in Mexico “highlights the need to consider the State’s actions and omissions which enabled the commission of such crimes in the first place, and the extent to which these can give rise to its international responsibility beyond the issue of human trafficking or smuggling” (Guercke 2021: 332). Guercke examines states’ positive obligations to protect the right to life and prevent violations of this, the different approaches employed in regional human rights jurisprudence – source-based and victim-based – to determine state responsibility for the acts of non-state actors, and the legal questions raised regarding state responsibility for disappearances perpetrated by organised crime groups in Mexico. Guercke argues that the source-based approach provides stronger analysis of state responsibility for failing to prevent violations perpetrated by organised criminal groups because it “takes into account the relationship between State and crime, as well as the specialised international legal framework to counter organised crime and corruption” (Guercke 2021: 332). A victim-based approach is unsatisfactory because it presupposes a clear distinction between the state and non-state actors, “ignoring the State’s role in the creation of risk and the structural factors … especially the case in contexts of widespread impunity and corruption, which perpetuate private violence” (Guercke 2021: 357). Guercke argues that it is crucial that “the State’s awareness of a general risk, and its contribution to exposing society at large, or particular groups of individuals, is taken into account to establish an obligation to act diligently to prevent violations” (Guercke 2021: 357) and that contextual factors such as corruption and impunity must be determined as part of the unlawful act in order to inform reparations – notably to guarantee non-repetition.

Some novel questions arise from this about state responsibility for these three aspects, both individually and at the points where they intersect. These include: state responsibility for externalisation instruments where their implementation violates the principle of non-refoulement; transit state responsibility for the adverse outcomes of externalised migration controls; impunity, and how far state responsibility for the acts of non-state actors extends beyond the principle of due diligence; the implications for state responsibility of corruption related to people-smuggling; and responsibility for the foreseeable adverse consequences of policy delivered in an environment of systemic corruption and impunity.

Obligations to those with potential international protection needs

Although states have the sovereign right to control their borders and to remove aliens from their territory or refuse them entry, this prerogative is trumped by the international obligations they hold to potential refugees. States are not obliged under international law to admit refugees or to grant every application for asylum, but they are prohibited from returning people to a country where their life or safety is in danger or where they may be subjected to persecution. Mexico has a robust de jure legal framework for international protection, with its obligations under international and regional human rights and refugee law codified in domestic laws.¹² Mexico’s Law on Refugees, Complementary Protection and Political Asylum (Ley sobre Refugiados, Protección Complementaria y Asilo Político) adopts the extended definition of refugee recommended by the Cartagena Declaration, provides expanded grounds for protection from discrimination and persecution, and grants protection for those fleeing generalised violence.

While some Central Americans who fled criminal violence in the mid-2010s were claiming protection in Mexico, by 2015 human rights organisations and academics were expressing concerns about the number of Central Americans that Mexico was deporting, the speed with which these deportations were carried out and the state’s possible non-compliance with the principle of non-refoulement and the right to claim asylum. Nonetheless, these deportations appeared to be a core outcome of Plan Frontera Sur, therefore any violations of Mexico’s obligations under the principle of non-refoulement were a direct consequence of this policy. Contemporaneous reports from human rights organisations and the media documented some of the extreme risks faced by both minors and adults deported without adequate screening or after a failed asylum application, including examples of people who were killed shortly after their return (Amnesty International 2016, 2018, Human Rights Watch 2016a).

Further to international obligations on the principle of non-refoulement, Mexico’s domestic laws provide additional protection against deportation for minors, allow for a humanitarian visa for unaccompanied minors, and place obligations on state agents to refer those who may have potential international protection needs to COMAR (Mexico’s refugee processing agency, La Comisión Mexicana de Ayuda a Refugiados).¹³ Despite this, there was a considerable increase in deportations of Central American minors from Mexico following the implementation of Plan Frontera Sur. Official figures from the Mexican migration policy unit indicated that the number of minors deported from Mexico to El Salvador, Guatemala and Honduras rose 350% between 2013 and 2016, resulting in 37,759 minors being returned in 2016. Rules on related laws and policies made it extremely difficult for unaccompanied minors to access the protection and regularisation options to which they were entitled. Policy rules in place in the mid-2010s made it impossible for unaccompanied minors to claim either asylum or the humanitarian visa unless they had both a legal guardian in Mexico and a legal representative to file applications.¹⁴ Under Mexican law, deportations of minors should only be conducted when this is in the best interest of the child; however investigations found that the state did not consistently “consider the risks run when the minors return to their country, where their physical and psychological integrity – and above all their lives – are put at risk” (REDODEM 2014: 65). Mexico’s Child Rights Law and Migration Law prohibit detaining minors in migration detention centres except in exceptional circumstances and, as detailed above, allow deportation only when this is in the best interest of the child. Nonetheless, in 2016, human rights organisations and researchers found that significant numbers of minors were being held in migration detention and subsequently deported.

Implementation of Plan Frontera Sur: a morphogenetic perspective

Although Mexico implemented Plan Frontera Sur within its territory, this decision was influenced – if not compelled – by political and financial pressure from the USA. Its implementation was triggered by the arrival of significant numbers of Central Americans at the US border (see Chapters 1 and 4). Looking at this implementation from the perspective of state agency, the decision by the USA to formulate the policy resulted from concern about the high number of migrants – especially unaccompanied minors and family units – arriving at its border. Mexico’s decision to implement the policy, however, was precipitated not by the flow of transit migrants but by political pressure and financial incentives from the USA. Mexico’s agency in this decision was exercised within the context of this pressure, without which the policy may not have been implemented. In some ways, these contextual factors of political and financial pressure compromise state integrity because they compel the transit state to partially relinquish its sovereign right to control its own borders and to put the interests of the destination state above its own. This pressure can, in turn, lead to violations of the transit state’s international obligations to those on its territory, such as deportations conducted without due process.

The actual implementation of Plan Frontera Sur on the ground appeared to differ somewhat from the declared objectives, which, according to experts I interviewed, comprised only of actions to limit transport options and to apprehend and deport migrants. Although undocumented entry into Mexico had been decriminalised in 2008, the implementation of Plan Frontera Sur in August 2014 enforced harsh in-country migration controls in areas where Central American migrants were known to travel. These included highway patrols and checkpoints, measures to prevent travel on trains, raids on hotels and swoops on moving vehicles by mobile immigration units. Experts noted that although some INM (Instituto Nacional de Migración, the National Institute of Migration) agents were transferred from the north of Mexico to the south, statistics on the number of detentions in the south attested to closer collaboration between the INM and other authorities in these operations, including federal, state and municipal police, the army and the marines.¹⁵

Within just two months – between August and October 2014 – the number of people detained each month by the INM had doubled and, by May 2015, this had tripled from 6,765 to 18,284, according to official figures.¹⁶ The rise in the number of deportations of unaccompanied minors and family units with minor children was marked: there was a 350% increase in deportations of minors during 2016 compared to 2013, with 81,261 deportations of minors between August 2014 and the end of 2016. As discussed in Chapter 4, after the initial drop in apprehensions at the US border, the policy was not consistently effective in preventing Central Americans from reaching the USA. Furthermore, deportation figures indicate that the restrictive policy actions may not have been applied as rigorously to nationals from countries outside Northern Central America, as similar increases were not apparent for nationals from other countries.

Despite the new structural factor of harshly enforced migration controls after the implementation of Plan Frontera Sur, the policy was successful in stopping migrants from arriving at the US border for only the shortest of terms. The new factors of these controls, together with political pressure and financial incentives from the destination state, did result in a greatly increased number of deportations from Mexico, according to official data from the Mexican migration policy unit. Despite this, the number of apprehensions of family units and unaccompanied minors at the US border increased significantly after an initial fall, according to official data from US Customs and Border Protection.

Given the extant contextual factors that affect migrant agency – namely their reasons for mobility and their access to people-smuggling services to help facilitate their journeys – Plan Frontera Sur was unable to prevent further new migrant arrivals at the US border. This shows that migrant agency is more powerful than the changed structural situation in migratory transit and continues to be exercised within its constraints – meaning that, although they may need to adopt tactics to avoid state agents and apprehension, people are not deterred from travelling. This was evidenced by the continuing flow and, notably, in the high number of those who continued with repeat migration immediately after their deportation from Mexico: a third of the people I interviewed at the Albergue had been deported following a previous migration since its implementation.

Adverse consequences of Plan Frontera Sur

Although Plan Frontera Sur purported to protect the human rights of migrants, it appeared to have had three key adverse outcomes on the human rights situation for Central American migrants in Mexico, which worsened. Firstly, there appeared to be significant numbers of deportations that may have violated international norms on non-refoulement, legal protection from deportation for minors, and access to regularisation options provided by Mexican domestic laws. Secondly, the implementation in practice resulted in increased abuse from Mexican officials and authorised private security staff. Thirdly, the security situation for migrants deteriorated significantly, marked by an increase in criminal attacks in southern Mexico and heightened marginalisation of migrants during transit. These three outcomes can be defined as:

1. human rights violations perpetrated in order to deliver the policy

2. human rights violations perpetrated during the execution of the policy

3. adverse consequences of the policy.

Despite the declared agenda of Plan Frontera Sur, there was no evidence that it helped migrants or protected their human rights. Rather, as detailed in Chapters 2 and 3, the security situation for migrants passing through southern Mexico deteriorated significantly. Following its implementation, there was a substantial increase in crime reports and of reported human rights violations and extortions perpetrated by state agents and private security (REDODEM 2014, Mariscal and Truax 2015, Knippen et al. 2015, International Crisis Group 2016, Human Rights Watch 2016, Sanchez Soler 2016a, 2016b, Hiemstra 2019).

Concerns were also raised about the manner in which migrants were apprehended, with human rights organisations describing these as cacerías or ‘hunts’. NGO and media reports documented the deaths and injuries of numerous people in road vehicle accidents during pursuits by INM and in immigration raids on moving trains, the repeated use of electroshock weapons during raids, and robberies and assaults by INM agents and by security guards on the trains collectively known as La Bestia (Knippen et al. 2015, Tuckman 2015, Castillo 2016, International Crisis Group 2016, REDODEM 2014, Pombo et al. 2016, Sanchez Soler 2016b, Hiemstra 2019). Such incidents were recounted in testimonies by migrants during my fieldwork at the Returns Centre in Santa Tecla and the Albergue in October and November 2015, and reported to me in interviews with people working with migrants and in shelters in southern Mexico. Several experts I spoke with described the use of racial profiling during immigration operations and apprehensions, and I witnessed incidents of racial profiling by INM agents when travelling on local buses in southern Mexico during my fieldwork.

The influence of the destination state – in the form of both political pressure and financial incentives – was a new contextual factor that affected the agency of the transit state, by encouraging the detention and deportation of as many Central Americans as possible. Nonetheless, prior to this, Mexico did not have a good record of upholding the human rights of undocumented migrants within its borders. Given the extant structural and contextual factors, including the poor human rights outlook for Central American migrants in Mexico and a history of extortion and other forms of abuse by Mexican state agents, the implementation of Plan Frontera Sur did not uphold – let alone improve – the human rights of undocumented migrants. On the contrary, it led to a worsening of the human rights situation for undocumented migrants in Mexico and to increased abuse by state agents.

Deportations that may not meet legal obligations

In addition to some of the practical barriers to protection expressed by respondents in Chapter 2, in practice, the in-country migration controls delivered under Plan Frontera Sur brought further challenges to the migrants’ ability to claim asylum. The implementation of these changes was largely characterised by a dramatic increase in deportations from Mexico and initially resulted in fewer people being apprehended at the US border. Expedited deportations and pressure from the USA to increase the number of deportations appeared to result in a situation where the Mexican state was arguably remiss in fulfilling its duty to ensure effective screening for risk prior to deportation and its obligation under international law to guarantee non-refoulement.

Human rights organisations and analysts raised concerns at the time that Mexico was not undertaking adequate screening prior to deportation (Domínguez Villegas and Rieteg 2015, Isacson et al. 2015, Podkul and Kysel 2015, Schoenholtz et al. 2015, Amnesty International 2016, International Crisis Group 2016, Human Rights Watch 2016); claims that were reflected in my 2015 fieldwork with migrants in the Albergue. Of the interviewees whose reasons for leaving their country indicated potential international protection needs, 43% had been deported from Mexico on a previous attempt during the same year. Had effective screening been carried out, it is unlikely that these people would have been deported due to these potential protection needs and the risks they faced on return to their country of origin. Over two-thirds of these people had told an INM agent about their fear of the danger of returning home but they were all deported nevertheless. All but one had left their country again following deportation (one was at the Returns Centre and said he planned to leave immediately) and two of them had applied for asylum in Mexico on their return.

Verbal claims for asylum must be accepted under Article 18 of Mexico’s Asylum Law. Accordingly, if a person tells any government official that they are frightened to return to their country, this should trigger a referral process (known as canalización) that will result in assessment by the Mexican asylum processing body, COMAR.¹⁷ However, my fieldwork data indicated a failure by officials to respond to verbal asylum claims and to refer people to COMAR. Of the twenty-eight people I interviewed at the Albergue whose reasons for leaving their country indicated some degree of potential international protection needs, nine had told a Mexican state official that they were frightened to return to their country and some had pleaded with the official not to send them back. The majority of these verbal claims happened during apprehension or in migration detention, either in local facilities or the large migration detention centres where deportations are arranged. They were usually made to INM agents, although a couple of respondents had informed the police involved in their apprehension. People said that their claims had not been taken seriously and that nothing happened afterwards, and not one person was put into the referral system nor informed about it.

All of those who had told INM agents on a previous attempt that they were frightened to return to their country were subsequently deported. One Honduran man said that he told the Federal Police, who had rescued him from an attempted kidnapping and shooting, that his life was at risk and asked them not to return him to his country. The police took him to INM, but INM agents only told him about how to apply for the humanitarian visa as a crime victim and did not mention asylum. A young Salvadoran man said he had told INM agents at the migration detention centre in Tapachula that he was afraid to return, but they ignored him and told him to go back to his own country. Even after he had repeated that he was scared to return, still no action was taken and no information about asylum was offered. Two Salvadoran men recounted that had been deported twice that year, despite having expressed their fear of returning to Mexican state officials on both occasions. One of them, who had fled death threats and attempted murder, had been detained at both Tapachula and Acayucan in Mexico. He said that on both occasions, he had explained that his life was at risk if he returned, but: “They just told me to apply for asylum. But they signed my deportation papers both times and deported me. They did not offer any advice or support or information on how to apply. They told me to go to my consul.”

Even those who had met with their consul did not achieve an appropriate outcome. A 34-year-old trans woman from El Salvador, who had received death threats from gangs, explained: “I told the consul I was scared to return. They did nothing and weren’t concerned.” Similarly, a Guatemalan bus driver, who had been shot and almost killed by gangs after he failed to pay extortion, was referred to his consul while in migration detention in Tapachula. He recounted:

The consul came and told me about COMAR who could help me. But they said that I would be better off returning to Guatemala and then coming back again, because the conditions in migration detention were so bad and the application process so long. So, the Consul signed my deportation and advised me that I could come back to Mexico and go to COMAR.

In both cases, the consuls signed their citizens’ deportation papers and the people were deported, despite the risk to them in their country of origin. These two respondents immediately left their countries following deportation because of the ongoing risk to their lives and were both in the process of claiming asylum in Mexico at point of interview.

It is clear from the accounts in my fieldwork and those documented by human rights organisations that Plan Frontera Sur resulted in deportations that did not comply with Mexico’s international obligation to guarantee non-refoulement. Data gathered in interviews with both experts and migrants showed that people were being pressured into being deported rather than being supported to claim asylum, and that others were being deported without appropriate screening. Although some commentators argue that “the Peña Nieto administration shares a substantial amount of the responsibility for this outcome with its northern neighbour” (Castillo 2016: 4), Mexico is still wholly responsible for ensuring that deportations are conducted in line with its obligations under international law and with the principle of non-refoulement.

External pressure from the destination state– in this case the USA – appears to have compromised Mexico’s agency somewhat and incited large numbers of expedited deportations. Nonetheless, there are other contextual factors that added to this outcome, notably: the extant poor human rights outlook for transit migrants in Mexico; insufficient capacity of state agencies, including COMAR and DIF (Sistema Nacional para el Desarrollo Integral de la Familia, Mexico’s agency for social assistance); corruptible state agents; and the perception among undocumented migrants that they did not have rights or that they were not potential refugees. However, one critical factor in this is the political influence of and ongoing financial incentives from the destination state, manifesting in mass deportations in the attempt to prevent people from continuing to the US border. Such pressure and payments led to the removal of safeguards when returning people, with a vastly increased number of deportations, expedited deportations and deportees being “processed” rather than screened.¹⁸ This outcome was driven by political pressure and financial incentives from the USA.

Financial incentives

Mexico was receiving funding and technical support for migration controls and initiatives from the USA, which allocated US$75million to the INM in 2016 alone (Frelick et al. 2016, Seelke and Finklea 2017). These funds were “meant to entice Mexico into securing its southern border – likely through the endeavours of Plan Frontera Sur” (Castillo 2016: 5). Several experts I interviewed attested that the USA paid for Plan Frontera Sur but did not have evidence of the precise financial model; one said that a senior Mexican official told her that the USA paid 80% of its cost. Other respondents claimed that there was a payment for the deportation of each Central American and that INM agents were being paid ‘per head’ to catch and deport them.¹⁹ This claim was repeated in the media, where Central Americans claimed immigration agents told them: “The gringos pay us to catch you” (Swanson et al. 2015). One expert I interviewed said that she had no doubt that this was the case but explained that it was hard to find evidence because there were no policy documents and “money goes through the Mérida Initiative, so it is hard to break down or to identify the performance-related part of it”.²⁰

The possibility of performance-related payments was also reflected in the narratives of migrants interviewed at the Albergue. Several respondents related that taxi drivers or Federal Police had delivered them to INM agents and they appeared to have received payment in return. They told me: “The taxi driver dropped me at the migra. He sold me!”; “I think there is a little business going on between federal police capturing migrants and the migra … maybe some ‘gifts’ being given”. If, rather than financing the operations generally, the USA were paying per deportation and the INM agents were receiving a bonus for each apprehension or deportation, then the level of influence within the framework would be greater. Depending on the model, such financial incentives could have the potential to compensate Mexico for acting contrary to its international obligations. Indeed, commentators have claimed that this means “the USA is funding and sanctioning state violation of migrants’ rights” (Hiemstra 2019: 55).

Implications of political pressure and financial incentives

Political pressure and financial incentives from the USA led to the initial implementation of Plan Frontera Sur and, subsequently, to an increase in reported human rights violations and deportations conducted without due process. This illustrates how pressure from the USA not only compromised Mexico’s decision-making and agency but also influenced the adverse human rights outcome of the policy. In this way, the USA was externalising its human rights obligations, particularly in relation to unaccompanied minors, family groups and those with international protection needs. Despite this new structural element, migrants continued to travel, illustrating the fallibility of migration controls, in particular within the context of forced migration.

Although Mexico received significant funding from the USA to implement these external migration controls, this does not in itself imply any shift in accountability for the policy outcome. The extent of control – and therefore responsibility – depends on the nature of externalisation instruments. Ostensibly, Plan Frontera Sur appears to fit most fully in McNamara’s (2013) conceptualisation of the “external dimension”, which would not pass the threshold for effective control. As such, the implementation of externalisation instruments under the policy does not comprise ‘effective control’ by the destination state, and Mexico bears responsibility for all its outcomes. However, if the financial package had included targeted payments based on the number of deportations –that is, if the USA were paying per head of deported Central Americans, rather than financing the operations generally – the level of control it exerts on the actions of a third state would be somewhat different. This would make the pressure on Mexico more direct and could shift greater accountability for the adverse outcome of meeting such targets to the USA. Such a financing structure could pass the threshold of effective control, because it provides incentives to conduct specific activities and could encourage increased or expedited deportations that may in some cases breach the principle of non-refoulement.²¹ These findings have implications for notions about state accountability for the outcome of externalised migration controls and any directly resultant human rights violations, not least because, as set out in ARSIWA Article 16, “it is a violation of international law for States to directly support the internationally wrongful acts of another State” (Frelick et al. 2016: 197).

State responsibility for acts of non-state actors: due diligence and beyond

While International Human Rights Law (IHRL) does not strictly impose obligations on non-state actors, “it has been widely recognised that States can be held liable for the acts of non-state actors in certain circumstances” (Obokata 2010: 46). Human Rights Committee (HRC) General Comment 31 on the extent of state responsibility under the International Covenant on Civil and Political Rights (ICCPR) clarifies, at para. 8, that the state “must protect not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights”. To comply with due diligence obligations towards the right to life, states must “take adequate preventive measures to protect individuals against reasonably foreseen threats of being murdered or killed by criminals and organized crime or militia groups”.²² States can violate their obligations by “permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities”.²³ This includes the requirement to “take special measures of protection towards persons in vulnerable situations whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence”, including “displaced persons, asylum seekers, refugees and stateless persons”.²⁴

It is somewhat less clear what degree of state responsibility for the acts of non-state actors there could be beyond the state’s positive obligations under this due diligence. Interpretations of the American Convention on Human Rights (ACHR) clarify that

the State can bear some responsibility for acts by private individuals in cases in which, through actions or omissions by its agents when they are in the position of guarantors, the State does not fulfil these erga omnes obligations embodied in Articles 1(1) and 2 of the Convention.²⁵

Nonetheless, the notion of state responsibility for the acts of non-state actors “appears to be in flux as those responsible for the interpretation and application of international law are confronted with new situations and new challenges that strain traditional doctrines of attribution” (Gallagher and David 2014: 290). Although responsibility for the acts of non-state actors is less explicit, Mexico has clear obligations under the principle of due diligence to prevent, punish, investigate or redress the crimes committed against migrants by non-state actors (see Guercke 2021).

The scale and persistence of abuse against migrants, however, indicated that Mexico was failing significantly in these obligations, and criminal groups continued to abuse and exploit migrants with near-absolute impunity (Knippen et al. 2015, International Crisis Group 2016). Not only was the widespread and systematic abuse of migrants being allowed to happen and to persist, but this impunity for crimes against migrants encourages their replication. An expert I interviewed explained: “the Mexican government’s decision not to investigate or punish aggressions against migrants is a form of inviting criminals to do more, to seek out these targets”.²⁶ Although authorities know where abuse occurs and where kidnappings take place, they do not have any presence in these areas and do not intervene and prevent them. As one expert clarified: “It’s like an unwritten agreement that divides territories – often between authorities and narco-trafficking gangs”.²⁷ Moreover, this is a critical aspect of criminal governance (see Introduction) and a deliberate strategy to maintain it.

Despite significant numbers of disappearances and deaths and the discovery of mass graves of migrants, Mexico has generally failed to investigate the situation or to proactively search for bodies. There are a variety of reasons for this failure to investigate and significant obstacles to doing so, from the practical (including a lack of technical capacity or specialised personnel), to obstacles posed by organised crime (such as opposition and threats from powerful organised crime groups or restricted access to territory that is under the control of a criminal group), to a lack of genuine political will. While some claim the desire to investigate may be present at the level of national government and state institutions, many experts I interviewed said that the overriding reasons for this not happening are the lack of state pressure at a federal level, impediment by organised crime and political disinterest that has its roots in either fear or complicity. Indeed, given the collusion between some state agents and organised crime, such absences and omissions could be driven by deliberate oversight, acquiescence or passive complicity – a deliberate intent to hide the problem, as one expert put it. Nonetheless, while people may blame the criminal groups that perpetrate this abuse, “very few people speak of the responsibility of the State in relation to this violence, and the decision of the Mexican state not to do anything”.²⁸

Although Mexico has taken some steps towards punishing crimes against migrants, their results and efficacy are not wholly apparent. In 2008, the state government in Chiapas created the Fiscalía Especializada en Delitos Cometidos en Contra de Inmigrantes (special prosecutor for crimes against migrants) to investigate and prosecute crimes against migrants, such as extortion, human trafficking and theft. A decade later, there were Fiscalía Especializada offices in several states in Mexico, working with migrant shelters and organisations to help facilitate crime reports (Isacson et al. 2014, Knippen et al. 2015). Despite this, there were few investigations into crimes against migrants, and scant prosecutions (Amnesty International 2010, Knippen et al. 2015, International Crisis Group 2016). As an example, between 2000 and 2015 there were just thirty-three investigations into kidnappings in the whole of Mexico, even though there were approximately 20,000 kidnappings per year.²⁹ Similarly, the Fiscalía Especializada in the state of Oaxaca received 383 crime reports over four years but started just ninety-six preliminary investigations into them, resulting in the prosecution of just four perpetrators (Knippen et al. 2015). The Inter-American Commission on Human Rights expressed “deep concern at what is clearly the State’s patently inadequate response in terms of the investigation, prosecution, and punishment of such crimes” (IACHR 2013). Further to these low rates of investigation and prosecution, the Fiscalía Especializada has “no jurisdiction over serious cases involving organised crime and does not investigate corruption and abuse by immigration agents, police or other officials” (International Crisis Group 2016: 12). This lack of jurisdiction is somewhat perverse given that organised crime and corruption are deeply linked in Mexico and that the abuse of migrants is known to be perpetrated by both criminal and state actors. Despite these steps, criminal groups continued to abuse migrants with near-absolute impunity and this situation persists.

Morphogenetic perspective on state inaction: from tolerance to impunity

Policy events in 2006 and 2014 (see Chapter 3) resulted in adverse consequences in terms of the development of structural direct violence as a threat during transit. The first of these policies was delivered in a context of state tolerance for pre-existing, structural indirect violence during migratory transit. This first policy resulted in the development of direct violence against transit migrants, forming the context in which the second policy was delivered. Parallel to this was the entrenchment of impunity as a contextual factor that accompanies this violence. Just as the pre-existence of indirect structural violence was a contextual factor in the development of direct violence during the transit portion of migration, the tolerance for indirect structural violence was a contextual factor in the development of impunity for direct violence.

The source of this impunity is in state inaction – whether due to a lack of political will or of legal, technical or personnel capacity – and, specifically, its failure to undertake its obligations under the principle of due diligence. Other contextual factors contribute to this impunity, including the absence of the state–citizen bond, the physical and social marginalisation of migrants during transit, and the ability of powerful criminal groups to corrupt state agents. Impunity then acted as a significant causal mechanism in the perpetuation of widespread and systematic abuse, enabling its establishment as a structural force during transit. In this way, impunity is not just a failure to prevent and punish but has causal properties that formed the context for the development and continuation of abuse, precipitating the replication of violence and abuse on an industrial scale. Nonetheless, this is logical, given the symbiotic relationship between organised criminality and corruption, between criminal groups and the state, that underpins criminal governance (Moncada 2016, 2021, Durán-Martínez 2018, Lessing 2020, Magaloni et al. 2020).

The state has a duty to take measures to prevent this violence by undertaking its obligations under the principle of due diligence. Its failure to do so has had the converse effect, aggravating the situation by enabling further abuse. In this way, the state acted as an incubator of violence and abuse, rather than as a disruptor. State inaction, then, is a negative form of agency that results in the causal factor of impunity. This contrasts with the expected positive manifestation of agency in the form of actions in accordance with obligations under due diligence, which would serve to disrupt and prevent further abuse.

Impunity and the foreseeable adverse consequences of policy: insight from morphogenetic analysis

Impunity was a contextual factor when Plan Frontera Sur was implemented, enabling a structural elaboration in the modus operandi of criminal groups in southern Mexico that manifested in systematic attacks on those taking new routes through this region. This analysis now examines the broader implications of endemic impunity and violence for policy, and the extent to which the adverse consequences might have been foreseeable or anticipated. Some commentators have argued that states have acted and implemented policy despite the foreseeable nature of their adverse consequences, notably in how policy led to increased border deaths and indirect violence during transit (Grant 2011, Weber and Pickering 2011, Michalowski and Hardy 2014).

This raises questions about whether the consequences of migration controls are wholly unintended. Some maintain that it is a deliberate move when policy is deployed in spite of the foreseeable consequences, arguing that such consequences are not “an unavoidable outcome of otherwise sound state policy. It is the result of a deliberate strategy of causing harm to undocumented immigrants in the hopes that they will go away” (Michalowski and Hardy 2014: 108). Noting the acknowledgement of US Border Patrol that migration controls would result in people risking “mortal danger” on marginalised routes across the border, they argue that deaths and harm:

are not the unintended collateral damage of otherwise benign immigration policies. They are the known and predictable results of border militarisation strategies designed to force migrants towards dangerous crossings. US policy planners made the deadly consequences of border militarisation part of their overall plan, [… and] forcing desperate migrants to make hazardous journeys was seen as an important ‘deterrent’ rather than a violation of human rights and thus a state crime. (Michalowski and Hardy 2014: 95)

In this way, the harm experienced by migrants during transit through Mexico is the anticipated collateral damage of policies: “the crude and brutal arithmetic of migrant death has too often been seen by policy makers and the media as no more than a side effect of border control” (Grant 2011: 69).

Just as border control has resulted in indirect violence in border zones or at sea, so, too, has it led to direct violence and the systematic abuse of migrants. In 2010, the Mexican defence minister Guillermo Galván said that civilian deaths were an unavoidable outcome of the 2006 ‘War on Drugs’ policy and that the policy would continue despite the deaths of civilians, children, students and young adults, which were “unfortunate collateral damage” (Ballinas 2010). It follows that the persistence of direct violence against migrants is also collateral damage that resulted from the same 2006 policy and increased following subsequent policies. Nonetheless, the concept of ‘collateral damage’ has “inbuilt implicatory denial … where governments actively seek to justify harmful actions, or at least deny moral responsibility for them” (Weber and Pickering 2011: 65). Given the pre-existence of structural indirect violence in 2006 and direct violence in 2014, together with endemic impunity, the adverse outcomes of policy – while not necessarily intended – must have been foreseeable to some extent. Indeed, just as states are aware that increased indirect violence results from more restrictive migration controls and “is a calculated consequence or ‘collateral damage’ – therefore an intentional policy. So too, with Plan Frontera Sur we have the same – that the implementation of the policy leads to people dying.”³⁰

By revealing the causal effect of impunity, my analysis shows that the adverse consequences of policy delivered in an environment of endemic impunity and criminal violence are foreseeable. The demonstrable causal effect of impunity raises questions about how far state responsibility may extend beyond due diligence for the acts of organised crime as non-state actors when adverse consequences are foreseeable and accepted as “collateral damage”. Of course, intent cannot be established, but morphogenetic analysis shows how such consequences can be considered to be both foreseeable and accepted, with state inaction forming part of the continuing cycle of criminality that both feeds and is fed by impunity.

Implications of ‘collateral damage’ for notions of state accountability

State inaction and tolerance have created a dangerous environment of impunity in which to deliver policy. Impunity is counter to state effectiveness and the rule of law, and is evidence that the state is not fulfilling its obligations to investigate and punish criminal acts. Regardless of whether impunity derives from omission, inaction or deliberate will – or that it is a critical strategy of criminal governance – it has a significant impact on human rights during the transit portion of migration. As a result, impunity and corruption are factors that can have a deleterious effect on the implementation of certain policy – indeed, they should be considered ‘red flags’ in policy delivery – in particular, those concerning the externalisation of migration controls, especially where organised crime is a co-present contextual factor.

Mexico is fully responsible for the endemic impunity surrounding the abuse of migrants by organised criminal groups, because this violates its obligations under due diligence. Nonetheless, this impunity is also a causal factor in the aggravation and perpetuation of such abuse. Indeed, it was a key contextual factor for the involvement of organised crime in this abuse and in the development and perpetuation of direct violence against migrants during transit. Rather than preventing violations and acting as a disruptor of criminality, the State incubated it.

These findings have implications for notions of state accountability because they expose these indirect causal mechanisms and the state’s role in these, meaning that clear lines of accountability can be drawn. It could, therefore, be argued that the state should bear a more direct degree of responsibility for criminal abuse that resulted and became widespread and systematic because of impunity. The analysis also shows the foreseeable and therefore anticipated nature of this outcome – the very definition of ‘collateral damage’. This raises questions about state accountability for such outcomes when the adverse consequences of policy would have been foreseeable.

Coexistence and collusion

Mexico is marked by systemic corruption, and collusion with organised crime is a major aspect of this. Indeed, corruption, co-optation, privileges and patronage have been integral to Mexican politics for many decades, and, in particular, to the operation of the PRI (Partido Revolucionario Institucional, the Institutional Revolutionary Party). Mexico’s government has long had strong links and cooperation with organised crime in a form of pax narcotica or pax mafiosa (Buscaglia 2016), with complex interactions between state and criminal entities (Trejo and Ley 2020). Indeed, prior to Mexico’s political transition in the 1980s, “the one-party State operationally ‘managed’ different organised crime networks with an iron fist in order to serve the PRI’s political machinery and the economic enrichment of its members” (Buscaglia 2016). This corruption and complicity seeped into other authorities, such as the police and armed forces, rendering Mexico’s legislative, judicial and executive controls dysfunctional. This both perpetuates impunity and is perpetuated by it: impunity for the acts of organised crime groups in Mexico is partly a symptom of corruption and collusion of state actors, and partly a factor necessary for its very existence and criminal governance.

There is also longstanding and widespread impunity for corrupt state actors in Mexico, which further perpetuates corruption. This has led to a general situation where there are blurred lines between criminal violence and state violence, and where the co-opting and corruption of state agents means that organised criminal groups overlap with the modern state in a complex and varied set of interplays (Arias 2017, Lessing 2020, Magaloni et al. 2020, Feldmann and Luna 2022). Casillas contests that, “These organisations function in parallel, institutionalise their knowledge and rationalise their actions. Thus, the social conflict has neither cause nor solution” (Casillas 2015: 27, my translation). Indeed, Buscaglia argues that issues of corruption and collusion with organised crime are so embedded in the Mexican state that electoral reform must precede other anti-corruption or judicial reforms because of the golden rule of state-driven mafias: “the mafia-leadership may change but the political–criminal network stays intact” (Buscaglia 2016).

The collusion of Mexican authorities with organised criminal groups in both the criminal abuse and the smuggling of migrants has been well documented and is “indisputable” according to experts I interviewed.³¹ Collusion with organised criminal groups may happen under differing levels of voluntariness: through omission and impunity, coercion enforced by threats or violence, corruption, active complicity or deliberate collusion. In the context of migration, this co-dependent relationship is most apparent in people-smuggling. Indeed, “corruption stands in the way of orderly migration management. [People-smuggling] is the most widely acknowledged connection between corruption and migration” (Carling et al. 2015). As such, people-smuggling in Mexico is the nexus of migration and corruption or collusion with organised crime.

This subversion of authorities through corruption is indicative of the symbiotic relationship between people-smugglers and the state, where corruption is simultaneously a tactic of organised crime and a condition for its development (Andreas 2011). Added to this, a weak rule of law is critical for organised crime to operate, and the ability to usurp the state’s role and control the transportation of people across borders and territories is critical to successful people-smuggling operations. Further, the usurping of government monopolies over border control and violence, and the co-opting and corruption of state agents, means that organised criminal groups “co-exist and overlap with the modern state and are as such an example of a ‘coercive transition’ in which nation states are losing power to non-state actors who take over their roles” (Sørensen 2013: 253–4). By usurping the monopolies of the state – violence, taxation and border control – organised crime’s involvement is strengthened, while the state’s effective presence is weakened. Inasmuch, it “is undeniable that by eroding the State’s monopolies the current form of the nation-state is harmed” (Casillas 2011: 309).

Weakened state integrity

Challenges to state integrity derive in a direct manner from the participation of corrupt authorities in people-smuggling, and in an indirect manner from their complicity with organised crime. As criminal groups take increasing control of and higher profits from people-smuggling, there is a strengthening of organised crime and, at the same time, a weakening of state integrity. This weakening is not entirely parallel, however. While state agents may be corrupted by or collude with organised crime actors in the facilitation of people-smuggling, they also act distinctly and independently of organised crime, accepting bribes and allowing passage.

As detailed in Chapter 4, migrant agency led to state actions (the implementation of Plan Frontera Sur) that then manifested as a new structural factor in the migratory trajectory. This was implemented in an environment of systemic corruption, weak rule of law and a strong presence of organised crime with deep involvement in people-smuggling. These contextual factors together with continued migrant agency meant that, rather than stopping Central American migrants arriving at the US border, the policy resulted in greater reliance on people-smugglers and in increased levels of collusion and corruption to facilitate people-smuggling journeys. This corruption served as a contextual factor in the facilitation of successful people-smuggling journeys, indicated by greater numbers of Central American migrants arriving at the US border – the very problem that the policy was supposed to curtail. In turn, increased corruption led to the strengthening of the organised criminal groups involved in this activity, and a parallel weakening of state integrity and effectiveness.

There are three key indicators of weakened state integrity in this context: the usurping of the state monopoly on border control, more extensive corruption, and the undermining of the rule of law. The success of people-smuggling operations – demonstrated by the continuing arrivals of migrants at the US border – represents a usurping of states’ sovereign right to control their borders. In this context, corruption renders migration controls weak or futile, acting as a more powerful factor than these structural elements. The implementation of Plan Frontera Sur also appeared to lead indirectly to more extensive corruption, with a higher number of corrupt officials and corruption at more senior levels. A further manifestation of weakened state integrity is the undermining of the rule of law through corruption. Whereas impunity undermines the rule of law through the state’s inaction or omission, corruption undermines it through the state’s action – albeit ultra vires (that is, unauthorised) acts of state agents.³²

This weakening of state integrity represents an elaboration of the state in a negative manner, being subverted by organised crime and corruption. In previous chapters, we saw how the position of the state as the only notable structural force within migration journeys had been changed by the development of organised crime as a structural force during transit – both as a threat during transit (Chapter 3) and as a facilitator of migrant journeys (Chapter 4). From a morphogenetic perspective, the weakening of state integrity and the usurping of its monopolies created a space or vacuum for organised crime to strengthen itself as a structural force. Thus, the coexistence of both organised crime and the state as structural forces both causes and is caused by impunity and corruption. As a result, by controlling territory, corrupting state agents and opening routes with bribes, organised crime has become a powerful geopolitical force that facilitates the movement of migrants more efficiently than the state is able to enforce migration control.

Implications of corruption for notions of state responsibility

Corruption and collusion related to people-smuggling increased as a result of Plan Frontera Sur, and this was foreseeable given extant systemic corruption, criminal governance and the complex interactions between various state entities and criminal groups in Mexico. Just as impunity is a contextual factor that can result in adverse outcomes for policy, so too does corruption have serious implications for policy. Instead of disrupting people-smuggling operations, the state is incubating them through its complicity in their facilitation. In contrast to the ostensible inaction of the state that results in impunity, this participation is active and thus has wider implications – namely a weakening of state integrity and effectiveness, and a parallel strengthening of organised crime groups. These findings have implications for our understanding of state accountability, primarily because the states are responsible for the acts of state agents – even when they are unauthorised or ultra vires. Due diligence, of course, also applies to the situation of corruption related to people-smuggling, where “these obligations include, at minimum, preventing and responding to public sector involvement in the human rights violations associated with migrant smuggling” (Gallagher and David 2014: 526).