Emotions such as compassion, fear, and shame play a central role in developing and implementing migration and refugee policies and laws: they guide both the adoption of laws and their interpretation. Understanding the emotional reasoning behind laws and policies is therefore essential for explaining why particular policies are adopted, how they are justified, and whom they benefit.¹⁾ Emotions can help us understand, in particular, the increasing attempts by States to renegotiate the fundamental principles of refugee protection, including the right to seek asylum and the principle of non-refoulement. Yet the emotional logic behind the substance and implementation of laws has been understudied²⁾ in migration and refugee law. While existing scholarship has focused on humanitarianism³⁾ linked to compassion and securitisation⁴⁾ linked to fear, research has largely omitted the role of law in relation to shame. In this post, I show how shame, shaming, and shamelessness shape the development and implementation of the international refugee protection system. I show in particular how shame acts as a moral guide for the system, but also how it is used to sustain racialised and gendered hierarchies within the system.

Researching Shame

Shame is not solely a private emotion; it is socially generated and instrumentalised for specific purposes⁵⁾. Most recently, David Keen, in his book Shame: The Politics and Power of an Emotion⁶⁾, analysed shame as a political emotion, focusing on its functions and role in relation to large-scale human suffering. Keen shows, in particular, how shame can be mobilised, manipulated, and instrumentalised, and how these uses and abuses have been central to modern politics. Keen, for instance, showed how shaming individuals or groups can help maintain unequal power relations; how calls to restore dignity or respect as an escape from shame can be used strategically for political mobilisation; and how shame about one’s own weakness can generate violence towards others.

In the context of refugee protection, emotional reasoning in general and shame in particular have been studied primarily in international relations rather than in international, EU, or national law. To be sure, the international system of refugee protection has been driven from the start by emotional reasoning, such as Fridtjof Nansen’s 1921 appeals to compassion⁷⁾ to support refugees from Russia. Beyond humanitarian motives, other emotions have also shaped the development of the modern system of refugee protection.

In my own research⁸⁾ and based on existing literature, I have identified at least four roles that shame, shamelessness, and shaming play in the context of refugee protection: as a basis for international refugee protection, as a strategy to press for change in state policies, as a strategy to offload shame for human rights violations onto the victims, and as an emotion that is part not only of the experience of being a refugee but also of the refugee determination procedure.

Shame as a Basis for International Refugee Protection

British migration scholar and practitioner Emma Haddad has argued that post-WWII international refugee law has constructed Western states as “moral international actors”⁹⁾ seeking to alleviate guilt linked to their earlier neglect of Jewish refugees. German lawyer and political scientist Otto Kirchheimer has argued in his 1959 text “Asylum”¹⁰⁾ that shame, as a moral stance against national self-interest, has been one of the foundations of refugee protection. Kirchheimer juxtaposes shame with raison d’état and considers shame as a collective political emotion felt by governments and political communities, an important basis for the functioning of the asylum system:

“Asylum – Herodotus already knew it – has its flaws. It is likely to remain mostly inoperative unless safely anchored in man’s propensity for shame.”

In the same text, Kirchheimer also highlights tensions between emotions and geopolitical and legal considerations, such as national vs. international law (e.g. sovereign discretion in decision-making v. international legal obligations as regulated in the Refugee Convention); compassion vs. self-interest (e.g. humanitarian basis for protection v. political aims such as embarrassing states by granting protection to their political opponents); and raison d’état vs. shame (e.g. protection of own interests v. avoiding morally questionable actions such as returning the persecuted to their countries of persecution). Unfortunately, Kirchheimer does not discuss the meaning and role of shame for refugee protection any further, but he positions shame as one of the most crucial elements in the refugee protection system. In light of the juxtapositions and tensions behind the politicisation of asylum, it is clear that national law cannot itself guarantee protection. Other factors, such as shame felt by state authorities (alongside compassion) as well as international legal standards, can therefore act as a moral and normative guide that prevents states from acting in a self-interested way.

The Strategy of “Naming and Shaming” for Violation of Human Rights of Refugees and Asylum Seekers

In line with Kirchheimer’s argument, shame and shaming have been considered to play a role also in attempts to change the behaviour of states violating human rights. In particular, shaming has been a strategy¹¹⁾ for international actors to press states to change their domestic policies. Shame here relies on highlighting the discrepancy between state behaviour, the international community’s moral standards, and the identity states aspire to. One example is EU criticism coupled with sanctions against Belarus for instrumentalising migrants and exposing them to human rights violations at the EU Eastern Border¹²⁾. However, the practice of “naming and shaming”, including in relation to migration, is often considered ineffective and can trigger a counterproductive backlash¹³⁾ or counter-blaming, such as Belarus accusing Polish security forces of violence towards refugees at the border and pushing them back to Belarus¹⁴⁾. States may engage in shame offloading behaviours and use various coping styles. For instance, states may seek alliances to support each other’s rights-violating behaviour. Through such behaviour, states may engage in what is called a quasi-projection coping style¹⁵⁾, where they cite similar behaviour by other states to minimise their own immoral action. In the context of refugee protection, recent developments at the EU’s Eastern border show such collaboration between Poland and Finland. Both countries have recently adopted legal changes significantly limiting the right to apply for asylum for those applying for protection at the EU Eastern Border and considered as “instrumentalised migrants”. This limitation violates Article 18 of the EU Charter of Fundamental Rights, which guarantees the right to seek asylum, and Article 33 of the Refugee Convention, which guarantees protection from refoulement. Eastern border states have also been accused of violating multiple articles of the European Convention on Human Rights, including the prohibition of torture and the prohibition of collective expulsion¹⁶⁾. Analysis of parliamentary discussions in both countries shows that Poland and Finland¹⁷⁾ have provided each other with mutual support and cited each other’s legal developments to justify adopting their own national laws, arguably to avoid the so-called hypocrisy costs¹⁸⁾ linked to behaviours that run counter to officially held values.

The Perverse Distribution of Shame

Another example of projection as a coping mechanism to deal with shame for violations of human rights of migrants is what David Keen calls a “perverse distribution of shame”. Keen studied the function of suffering in the Calais refugee camp¹⁹⁾ in 2016, where refugees suffered violence and different forms of humiliation induced by police, such as raids, destruction of shelters and personal belongings, contamination of food and water, racist abuse or attacks on religious symbols, among others. The authorities constructed very poor living conditions in the camp and created an image of “in-fighting, disease and desperation”. Ultimately, the camp was closed. Keen shows that the authorities thus removed shame from human rights violators (the state) and projected it onto the victims of human rights violations (the migrants). The liquidation of the camp could then be rationalised as a humanitarian act itself. As Marie-Luisa Frick analysed, this dehumanisation violated the migrants’ human dignity, consequently affecting their other rights²⁰⁾, and made many residents of the camp internalise this shame as well. These practices of perverse distribution of shame – blaming migrants themselves for the disastrous conditions in the Calais camp, and portraying them as “fanatically determined or even crazy”²¹⁾, in other words, constructing migrants as an enemy –  have further enhanced the perpetrators’ shamelessness and a sense of impunity for their actions²²⁾.

Shame as an Emotion Linked to Refugee Status

While the development of refugee protection may be motivated by a collective sense of shame and affected by strategies to offload it, receiving protection can also cause shame. As Hannah Arendt writes in We Refugees, “[i]f we are saved, we feel humiliated, and if we are helped, we feel degraded”²³⁾. To be sure, shame has been part not only of the experience of being a refugee but also of the refugee determination procedure in various ways, not to mention the internalisation of shame as a result of its perverse attribution, as discussed above. One example of an asylum procedure where shame plays an important role is the credibility assessment. For instance, Karin Åberg shows how shame has become an implicit legal requirement for LGB refugees²⁴⁾ to be found credible and therefore granted refugee protection in Sweden and the Netherlands. This is based on an understanding that fleeing the homophobic countries of origin, LGB asylum seekers necessarily internalise this homophobia and are required to provide detailed accounts of their emotions, in particular shame, about their sexual orientation.

Another example: to justify late disclosure of some acts of persecution, such as rape, in the early stages of the asylum procedure, women are expected to give a legitimate reason, such as shame or trauma.²⁵⁾ At the same time, in relation to sexual violence as a basis for persecution, women are considered less credible overall, compared with men. In the case of men, sexual violence is considered more shameful and stigmatising and therefore mentioning it during the refugee status determination procedure makes the claim more credible²⁶⁾. Finally, being a subject of refugee procedure or receiving a negative decision on refugee status (being a “fake case”²⁷⁾) can cause shame.

The legal implications of shame, as an emotion experienced by protection seekers, are therefore twofold. First, shame may become an obstacle to applying for protection or to disclosing certain bases for persecution. Second, shame has become integrated into the refugee status determination procedure as an indicator of the existence of the grounds for persecution and of persecution itself. This is particularly problematic because it excludes the possibility of feeling pride or joy in one’s sexual orientation among LGBTQ+ asylum seekers, but also, importantly, it disregards the complexity of assessing emotions due to cross-cultural differences in emotional responses.²⁸⁾

Conclusion

Refugee protection in Europe faces multiple, overlapping crises, including a crisis of refugee protection and an epistemological crisis in refugee law expertise. The combined crisis of law and rationality cannot be explained without examining the emotional logic underpinning refugee law and state refugee policies. In particular, without understanding shame’s crucial role in developing and implementing refugee protection, legal academia will struggle to understand the reasons behind refugee rights violations and propose adequate legal and policy solutions.