Last month the international community expressed their concerns about the recent violence against foreign nationals (migrants and refugees) in South Africa. After a labor dispute in March and a ‘fuelling’ speech by King Goodwill Zwelithini, the traditional leader of the Zulus, the latest violence flared up in April in the Durban area and spread to Johannesburg; violence between migrants and non-migrants. Locals plundered foreigners’ shops and attacked immigrants in general claiming they took their jobs, forcing hundreds to relocate across the country. This type of violence, which is called xenophobia, is a very big challenge for the Rainbow Nation. The country where people once came with hope of a better future: the asylum seeker ‘hotspot’ of the global south.
For as long as humans have existed they have migrated, spreading goods, cultures and ideas across the globe. But it has become clear today that this human movement also has negative consequences for migrants en route (such as the boat people at the Mediterranean Sea) and in their destination countries. In this blog I will only talk about violence against foreign nationals (regardless of their status) in destination countries with a special focus on South Africa.
Xenophobic discrimination is among the greatest challenges to migrants and refugees globally. Brutal attacks against foreign nationals threaten the lives of many in countries as Libya, Greece, India, Malaysia, Thailand, Ukraine, United States and recently in South Africa. Xenophobia can be explained as the unreasonable fear and hate against foreign nationals or anything that is perceived as foreign or different. There are many causes for this type of violence, but the most important ones are: the lack of mutual understanding between migrants and non-migrants, the competition for jobs, housing and welfare, group processes and feelings of nationalism. Additionally, the risk of violence is heightened during times of economic hardship.
The difficulty is that often political leaders in countries facing xenophobia only focus on the negative impacts of migration, this to divert attention from their own lack of governance. They do not take sufficient measures to protect their migrants and the criminal justice systems do not provide a sufficient response. Especially when xenophobia leads to hate crimes, criminal acts towards foreign nationals, it is important that non-migrants do not fare better in terms of the outcomes of decisions and sentences within the criminal justice system, and thus face an equal treatment. The position of foreign nationals is difficult and sometimes migrants and refugees are even targets of harassment by public authorities, such as police officers.
International and European Legal Framework
International law does not explicitly state what constitutes unlawful xenophobic discrimination and violence against migrants. Global actors such as the UN Refugee Agency (UNHCR), the International Organization for Migration (IOM), and the International Labour Organization (ILO) have struggled with this question. In doing so, they have identified international human rights law as the most important legal tool for the legal prohibition of xenophobic discrimination. Of course, combating violence against migrants also requires countries to take measures in accordance with the United Nations standards and norms in crime prevention and criminal justice. According to the Salvador Declaration 2010, countries need to adapt their criminal justice systems to a changing world.
In Europe, the European Union (EU) has introduced and initiated a broad set of measures to combat different forms of racism and xenophobia. For example the Framework Decision on Combating Racism and Xenophobia by means of criminal law, which requires member states to amend their national penal codes. The purpose of this framework decision is to ensure that racism and xenophobia are punishable by effective criminal penalties in the EU. Furthermore, it aims to improve and encourage judicial cooperation between the member states in this field. But to be effective, the international and European standards must be accompanied by actions from within countries.
Xenophobia in South Africa
Violent xenophobia has unfortunately become a regular feature of South African life. After the period of Apartheid which ended in 1994, the incidence of xenophobia increased. Since that time, South Africa has a new Constitution and a Bill of Rights. But despite human rights law, South Africa has no legislation covering crimes motivated by factors as ethnicity and racism or xenophobia. Hate crime is not a recognized crime category. This does not mean that the government of South Africa does not take any actions. President Zuma says the government is overcoming the problems and he has spoken out against the incidents of last month in Durban and in Johannesburg.
It was not the first time xenophobia exploded in the country. Most of the attacks last month and before have erupted in the poor areas of South Africa. Immigrants in South Africa are being accused of taking jobs, undermining local businesses and that they contribute to the high crime rate in the country. Despite the progress the Rainbow Nation has made since its apartheid days, inequality still remains a major concern, according to the Nelson Mandela Foundation. And also the International Organization for Migration (IOM), commends the government of South Africa to take more measures to protect the safety, property and dignity of the migrants and refugees in the country.
Xenophobia: Final Words
As stated in the introduction, the phenomenon of human movement also has negative consequences for migrants. Xenophobia, the unreasonable fear and hate for foreign national, is one of those consequences of migration. The recent attacks were strongly condemned by organizations and government leaders throughout Africa and the rest of the world. Xenophobia is a very big challenge, not only for South Africa. It is important that countries take actions; it was thus wonderful to see several thousand demonstrators marching through the streets of Johannesburg to protest against the attacks on immigrants and singing: “We are all Africans”.
A selection of relevant publications from the Peace Palace Library collection
- Fella, S. and C. Ruzza (eds.), Anti-Racist Movements in the EU: Between Europeanisation and National Trajectories, Basingstoke, Palgrave Macmillan, 2013.
- Landau, L.B. (ed.), Exorcising the Demons Within: Xenophobia, Violence and Statecraft in Contemporary South Africa, Tokyo, United Nations University Press, 2012.
- Saunders, C. (eds.), Region-Building in Southern Africa: Progress, Problems and Prospects, London, Zed Books, 2012.
- Achiume, E.T., Beyond Prejudice: Structural Xenophobic Discrimination Against Refugees, Georgetown Journal of International Law, 45 (2014), No. 2, pp. 323-382.