Parody or Death? Refugee Law in Populist Regimes

[Péter D. Szigeti is a Collegium Fellow at the Turku Institute for Advanced Studies and the Faculty of Law at the University of Turku, Finland, and an Associate Professor at the Faculty of Law of the University of Alberta, Canada]

There has been a lot of discussion about whether we are witnessing the “death of the liberal rules-based order”; international lawyers have even used terms such as “the graveyard of international law” or “dystopian international law.” Undoubtedly, refugee law is “[one of] the first collapsing regimes,” wherein violations and disregard for the law have already been normalized, both in Europe and in the United States. What will happen next? Is refugee law simply going to disappear, or will it transform into something more sinister, a parody of itself that is focused on impunity instead of protection from persecution? A few current news articles suggest the latter: illiberal regimes are turning refugee law into a way of mocking the original, liberal commitments of international refugee law; and ultimately, into a form of extended sovereign immunity for accused and convicted foreign politicians.   

On November 28, the United States suspended all asylum proceedings, following a deadly attack against two National Guards by an Afghan refugee two days before. In and of itself, this is neither surprising nor exceptional. The instrumentalization of asylum seekers by Russia and Belarus in 2021 and since then has been couched in the language of warfare: “hybrid attacks” and the “weaponization” of refugees. It has also led to the closing of most border crossings with Russia and Belarus by Finland, Poland, and the Baltic states. Effective suspensions of the 1951 Refugee Convention, although not provided for in the text of the convention, are not new.  

Nor is the general erosion of refugee law. Over the last decade or so, the obfuscation of refugee law, pushbacks, and “driftbacks” have become quite normalized in liberal democratic regimes. The Baltic countries, Finland, and Poland have closed their borders with Russia, preventing Russian deserters and asylum seekers from entering these countries, at a time when the Russian state becomes more and more violent towards its own population as well. Unquestionably, democratic states, including Australia, Italy, and the United Kingdom, have tried, almost desperately, to externalize refugee law entirely. This is done both through agreements with transit countries to prevent refugees from arriving to liberal democratic states, and through agreements with poorer and more remote countries, for those countries to harbour refugees over the long(er) term. No wonder that Dimitry Kochenov and Sarah Ganty have renamed EU refugee law into “EU lawlessness law.”

At the same time, we have also read about Trump’s pardoning of Juan Orlando Hernández, the former president of Honduras, who was sentenced to 45 years in prison in the United States for facilitating drug trafficking. Where will Hernández go after receiving his pardon? Probably not back to Honduras, where he would be liable to face prosecution for the same crimes for which he was sentenced to prison in the United States (according to Article I of the U.S.-Honduras Extradition Treaty, at least, which requires dual criminality as a precondition of extradition). Some exceptions for asylum, therefore, remain. Refugee status, it seems, will not be granted to ordinary foreigners who are escaping from persecution in their home countries; but it will be given to foreign politicians who have been indicted or convicted of crimes.

The exceptions where asylum is still granted seem to point to a sort of parodization or satirization of the law: dancing on the grave of refugee law, in effect. We can see this clearly in recent U.S. policy-level decisions on asylum. On the one hand, the U.S. has deported Russian asylum seekers back to Russia, a clear violation of non-refoulement (which is a jus cogens norm), and it is diplomatically trying to “radically reshape” (basically, abolish) the 1951 Refugee Convention. These decisions fit the “death of refugee law” narrative. On the other hand, the U.S. has granted refugee status to White Afrikaners from South Africa, on the pretext that Afrikaners are escaping from “pervasive racial discrimination” and even “genocide.” Additionally, “[a]n internal document… suggested the Trump administration could also prioritize bringing in Europeans as refugees if they were targeted for expressing certain views, such as opposition to mass migration or support for populist political parties.” Clearly, neither White South Africans nor right-wing Europeans are facing death, torture, expulsion, or the loss of their livelihood upon disagreement with the laws and political regimes in their homelands. Political disagreement is not the same as a “well-founded fear of being persecuted for… membership of a particular social group or [having a] political opinion.”

Let us look at a definition of satire: “It is common knowledge that the genre of satire is animated by critical-moralizing objectives: as a critical, agonizing and even polemical discourse, with extra-textual targets. Unlike parody, resorting to caricature, grotesque, diatribe, invective or pamphlet language, the ethos of satire is openly critical, aggressive and corrosive.” (p. 6). Parody, on the other hand, “feed[s] off other works like parasites, and make[s] fun of them, often in spiteful and witty ways… it may be an oblique form of homage, but it is more likely to be malicious, targeting the original person or text in order to undermine it and put it up for ridicule” (pp. 79-80). The aggressiveness and the desire to reform point to satire; populists’ adherence to the rhetoric of refuge and persecution, by contrast, is more typical of parody. 

The parodification/satirization of refugee law, like so many other current right-wing “innovations,” was pioneered by Hungary. In 2018, Hungary granted refugee status to Nikola Gruevski, the former prime minister of North Macedonia, who had been convicted in Macedonia of corruption charges. In 2024, Marcin Romanowski, a Polish former deputy minister of justice, received refugee protection, after having been charged with corruption and embezzlement in Poland. Ostensibly, domestic criminal proceedings against both politicians were evidence of persecution for their political opinions. There were also reports of Hungarian police forces planning to exfiltrate and give protection to Milorad Dodik, a Bosnian Serb politician who has since been convicted of criminal contempt of the High Representative for Bosnia and Herzegovina, and even Jair Bolsonaro, Brazil’s disgraced former president, apparently considered applying for refugee status in Hungary before his criminal trial. These decisions fit the definition of parody in that they use the legal and institutional infrastructure of refugee law to critique its liberal underpinnings; but they are also satirical in their aggressive, corrosive and moralizing stance. They were also, of course, made against the backdrop of effectively the wholesale repudiation of refugee law in Hungary, and the Hungarian government preferring to continue paying €1 million per day in fines, in accordance with the CJEU’s judgment, rather than complying with EU refugee laws.

I will conclude by making three legal-political claims about refugee-law-as-satire/parody. Firstly, the parody of refugee law only works in opposition to, or as a comment on, refugee law exercised and discussed in good faith. Parody and satire are directed primarily at the true believers, those who still take refugee law seriously: still-existing countries of refuge, activists, scholars, NGOs, and refugees themselves. Not only will their claims and rights be denied, but insult will be added to injury by recognizing the unjustifiable claims of the privileged. In more modern parlance, refugee law is turned from a form of “virtue signalling” into a form of “vice signalling.” For example, four months after having received refugee status in Hungary, Marcin Romanowski was appointed to head the newly established “Hungarian-Polish Institute of Freedom”, which claims that “Poland has become a testing ground in which the fundamental values of Western civilization are being challenged and continually attacked.”

Secondly, the satirization of refugee law is yet another arena in the “geopolitical realignment” whereby populist regimes view liberal democratic regimes as the greater enemy, compared to autocratic regimes. Refugee law has always had a foreign policy aspect of naming and shaming regimes that persecuted their own citizens. In Matthew Price’s words, “[a]sylum… also has an expressive dimension: it directs condemnation toward other states for having egregiously mistreated the refugees it protects” (p. 70). Refugees themselves are less important than the reactions of liberal democratic states. The Polish Ministry of Foreign Affairs has clearly seen this, and communicated as much to Hungary: “[w]e consider [the] decision to grant political asylum to Marcin Romanowski… a hostile act towards the Republic of Poland” as well as contrary to EU law. Finally, what happens if the project to eschew refugee law triumphs? Kaius Tuori and Iida Karjalainen have documented the rhetorical strategies of the (European) extreme right, which seeks to redefine human rights as an instrument of racism and exclusion. Common tropes include statements about human rights being so closely tied to European civilization that they are only applicable to Europeans; portrayals of Europeans as the true victims of human rights “violations” such as immigration, refugees, and welfare recipients; and complaints that human rights are unjustly skewed to protect terrorists, criminals, racial and religious minorities, and developing countries; and that care about human rights globally is a form of “civilizational suicide.” If these arguments become normalized and codified, then whatever form of asylum still exists will exist as a form of lingering sovereign immunity. In other words, the persons who can count on shelter and protection abroad will be foreign politicians who have violated their own domestic laws, but then fallen out of power and escaped abroad to friendly regimes. This is, after all, the essence of the current Hungarian practice: establishing a network of safe harbours for right-wing politicians, where they can escape if the rule of law threatens their ability to return and take power once again. Refugee law will then be one of the many cooperative techniques used by “Autocracy, Inc.”, as recently described by Anne Applebaum, that is the loose global coalition of anti-democratic regimes.