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Human Rights for the Few, Not the Many

A Critical Perspective on Immigration Policy in France

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Edited transcript of Miriam Ticktin's lunchtime presentation to SSRC staff on 22 May 2007.

ANDREW LAKOFF: I'm very happy to introduce Miriam Ticktin. She is assistant professor in women's studies and anthropology at the University of Michigan and was on leave this past year (2006-2007) at NYU's International Center for Advanced Study as a research fellow. She will be coming to the New School in 2009 as an assistant professor of anthropology and international studies.

Miriam received her Ph.D. in cultural anthropology from Stanford University in 2002 and her Ph.D. in Medical Anthropology, co-tutelle, with the École des Hautes Études en Sciences Sociales (EHESS) in France, also in 2002.

She is currently working on a book, Between Justice and Compassion: The Politics of Immigration and Humanitarianism in France, which is about the fight for social justice of undocumented immigrants in France. She is also co-editing a volume with Ilana Feldman called Government and Humanity, which explores new conceptions of the category of humanity.

Jonathan VanAntwerpen couldn't be here today, but we're both excited about the idea of having Miriam here, in part because we're beginning to develop a project that would bring together the Council's work on religion with its work on risk and security under the rubric of what Craig Calhoun has called the "emergency imaginary." We had the idea of having Miriam come and kick off a discussion to help us think through the concept of emergency and exception. Appropriately, the title of her talk today is "Humanitarianism and Sexual Violence: Thoughts on the Politics of Exception."

MIRIAM TICKTIN: I'll begin by explaining how I began the project, and hopefully this will bring us around to some of the questions that most interest you.

I went to France in 1999 to look at the social movement by undocumented immigrants—les sans-papiers—for basic human rights. This movement, based on the universal language of human rights, grabbed media attention and ultimately helped to change the French government policy. As an anthropologist, I was interested in seeing how the project took shape on the ground, in particular locales.

The sans-papiers movement brought together many people of different nationalities, classes, and linguistic and cultural backgrounds. Most of those involved in the movement had entered France legally and then ended up illegal due to changes in French immigration laws during their stays. Some came as students—then failed their exams and lost their papers. Others came as partners of French nationals. Still others came as refugee claimants.

A critical moment occurred in August 1996, three years before my arrival. The riot police stormed the Saint-Bernard Church, which had been occupied by 300 undocumented Africans. It was the first time that the police had invaded a church in France. They knocked down the doors, used tear gas, dragged people out, and deported many of them that same night. The media coverage was prompt and provoked a vociferous reaction among the French public. How could this be happening in what they thought was the land of human rights?

A few months later, the socialists came to power, helped in no small part by demonstrations against governmental abuses of human rights. The new government passed a law allowing the legalization of sans-papiers who fulfilled certain conditions, and they promised a wide amnesty. So France was lauded as once again living up to its reputation as the home to human rights.

Reflecting this success, social movements for undocumented immigrants elsewhere in Europe have modeled themselves on the French pattern, and the leaders of the French movement have helped train other leaders of undocumented immigrants.

When I arrived, I joined these various movements, trying to see how they worked, how people were getting papers, how this language of human rights played out on the ground. It didn't take too long to see that the French ideal of respect for human rights was not all what it was made out to be. Under the new socialist government, about 80,000 people got papers, but that was less than half of the people who had applied. There's a limit to how many people the state can afford to recognize on the grounds of human rights without the economy suffering. The conditions for papers were absurdly strict and were applied on an arbitrary basis. People were dealt with increasingly on a case-by-case basis, but it was unclear what criteria applied. The immigrant associations were very frustrated because they ended up having to deal with clients on an individual basis as opposed to forging larger political programs.

I became interested in finding out what qualified someone as worthy of papers and basic human rights. It turned out that people had to foreground their suffering, their status as victims. Early on in my observations in hospitals and clinics, I noted that one of the first questions social workers asked was, "Are you sick?" When people said, yes, they asked, "How sick?" The answer they hoped for was "very sick" because that's the way they could get you papers.

The reason was because of a 1998 revision to French immigration law, what I call the "illness clause." Those with pathologies of life-threatening consequence, if they are declared unable to receive proper treatment in their own countries, would be eligible to get papers to stay and receive treatment in France.

The logic behind the illness clause was humanitarian and exceptional. French government officials felt that they couldn't deport immigrants if the deportations had consequences of exceptional gravity such as the death of the person you were deporting. The exceptional humanitarian clause was instituted formally in 1998 due to the intense lobbying of groups like MSF [Médecins sans Frontières/Doctors without Borders] and MDM [Médecins du Monde/Doctors of the World], though the practice had taken hold well before that in certain departments in France.

The official language of the illness clause states that it is to protect human dignity, but in my view it was intended for safeguarding France's claim to moral primacy—to shore up its identity as the originator of both the Declaration of the Rights of Man and Citizen and of the Nobel-Prize winning MSF.

I worked for a while in a state medical office, where statistics showed that applications for the illness residency permit increased seven times over the course of the 1990s. In 1993, this particular state medical office sanctioned 194 immigrant patients for treatment. Ten years later, the number of those accepted and given papers rose to 4,000.

Didier Fassin, an anthropologist and doctor, has shown that there is an inverse correlation between the statistics on political asylum and those on medical humanitarianism; that is, as fewer and fewer are accepted for political asylum, more and more get accepted under the humanitarian exceptional clauses. Legal and political recognition comes at the expense of biological integrity. You have to forfeit one for the other.

By the time I did my investigations, the humanitarian exception had become the clearest hope for papers. Moreover, one had to remain sick to keep one's papers. Officials in this particular state medical office told me about cases of people who were purposely not treating their illnesses so as to keep their legal status. A visa for illness is indefinite if the illness is deemed chronic or terminal; otherwise, the visa granted on a temporary basis—three months, six months, a year—and must be constantly renewed.

One needs to ask, why, when the doors are basically closed to immigrants and refugees, that an exception is made for those who are ill: why can illness cross borders when poverty can't? The framing of the illness clause helps to answer this question. It was ratified only because it was thought to be outside of the realm of the political. It was about the higher moral cause of the suffering body, and thus exempt from the debates about the politics of immigration and citizenship in the French nation.

Following this logic, people could get an illness permit, but not a work permit. You're HIV positive, so you can take your medication but you can't work. The idea is that you don't belong to the French nation; you are accepted under these exceptional circumstances and that's it. The focus is on the narrow possibility of healing the sick, injured or disabled body. Seriously ill people are disqualified from taking part in economic, social or other aspects of French social and political life.

The practice of the illness clause revealed a new hierarchy of morals, where the sick or suffering body was considered to be the only legitimate manifestation of a common humanity.

Immigrants did all kinds of things to configure themselves as sick bodies worthy of papers and devoid of all political subjectivity. I encountered many examples, from people who purposely didn't get their cataracts fixed to those who made calls to Act-Up Paris asking how to infect themselves with HIV/AIDS in order to get papers. One man ended up taking the identity of somebody who had died of HIV/AIDS and taking his medication. Even if you got papers as someone else, it meant you got political recognition.

Of course, no one is ever outside of politics. What is considered apolitical is in itself socially, culturally and politically defined. So how is it that we classify the suffering body as apolitical? This is what interests me. The idea relies to some extent on the fixity of biology. Bodies can't lie; scars will tell the truth. By the same token, certain cultural signifiers can help one appear more like a suffering body. We see a strange mix of the cultural and biological that has to be configured in just the right way.

Let's look at the logistics of the illness clause. In shifting the politics of immigration to a politics of humanitarianism, those who enact the humanitarian clause obviously wield more power because they are the gatekeepers. Doctors, and particularly the state medical officials, have to legitimate people's illnesses. In the office where I worked, the nurses and doctors received the sans-papiers face to face. The immigrants presented their files in person; they came in to tell their stories. Under these circumstances, the definition of "life-threatening" was negotiable, the result of a personal interaction that allowed for compassion to be evoked.

The nurses told me the following story, which reveals as much about them as it does about the sans-papiers. In the late 1990s, a young Algerian woman, Fatima, came to Paris after being raped and disfigured by her uncle. Fatima's ordeal began with the death of her primary caretaker, her grandmother, after which she was sent to be cared for by her uncle and aunt. Both of them blamed her for the rape, and she was shipped off to France, where her mother was staying. The nurses said she looked horrible and decided to give her temporary papers to receive medical care. When her documents were about to expire, she returned back to the office and asked for a renewal of her papers. The nurses explained to me that in their interpretation, she would return to a pitiful life in Algeria where she would be forever shamed because of her rape, and therefore unmarriageable. Her life would be one of ostracization and loneliness. They decided to grant her authorization to stay in France indefinitely. They also prescribed psychological treatment as she seemed to be suffering from trauma—PSTD. Their decision, as they explained it to me, crossed over into the realm of social justice. These two nurses felt a moral responsibility in caring for this young woman's health and well-being.

This story suggests that compassion is most effective in face-to-face interactions: when those who don't suffer come face to face with those who do. In state medical offices, the suffering of others isn't always immediately apparent. One has to make a case for it; one has to make it visible.

The story also shows that to engage the imagination of the person you are interacting with, there must be an appeal to common reference. In Fatima's case, the compassion was clearly based on a familiar orientalist narrative about pitiful Muslim women.

In 2004, I went back to Paris, and I found out that the service at this particular state medical office had been shut down. The humanitarian clause was still active but the service that allowed the sans-papiers to come in and sit face to face with the nurses and doctors had been discontinued. People had become increasing suspicious about the political motives of the sans-papiers to the point where the service was deemed problematic by the larger state forces. Now the sans-papiers can send in their medical files, but they can't come in and tell their stories face to face.

To some extent, this outcome was predictable. The idea that suffering bodies can exist outside of politics can be sustained only for a short period of time. It exists in the temporal present, without the larger historical context.

The humanitarian mandate is one that eschews any form of longer-term political change or solution in the name of being able to respond to emergencies with political neutrality. That humanitarian response has to remain in the temporal present. As soon as historicity enters the picture, the humanitarian impulse is unable to function or has to become something else.

Returning to the office where I did my primary research: I remember a few things happening there that helped to politicize the situation. As lines of immigrants filled the halls and trailed down the stairs, filling all the rooms, staff came face to face with the sans-papiers in ways that they did not find necessarily pleasant. They couldn't think of an individual, atomized suffering body when confronted with large groups of immigrants. The issue became racialized, and I heard many racist remarks.

Then the nurses discovered a trafficking ring run out of North Africa in medical certificates for very serious illness such as cancer and HIV/AIDS. While this was totally predictable and understandable on one level, in that people will do what they can to be treated like human beings, and to get rights when all other avenues are closed, of course it became a political issue. Combined with the focus on national security, it was enough to shut down the service.

A law passed in 2006 limits the ability of doctors to grant papers on the basis of illness. Many immigrants are now deported despite having very serious illnesses. Sick people are seen as increasingly suspect.

One might ask if this signals the end of humanitarian moment, but in fact, the humanitarian ethic is still in place. It's just that the discourse has shifted its focus to violence against women. Humanitarian exceptions are granted on the basis not of illness, but of proof of violence having been committed against innocent and oppressed women. The gendered element had always been a factor in considering the suffering body, as in the rape case I mentioned—the subject of rape is clearly a gendered subject. Women are often equated with innocence, passivity and some kind of apolitical corporeality. They are seen as suffering victims of oppressive, patriarchal cultures and as such, deserving of being rescued in the name of a superior moral order. But it's slightly different now.

I'll give you an example. The French presidential elections were held in May 2007, and Nicolas Sarkozy won. In the lead-up to this election, Sarkozy visited a shelter for battered women, many of whom were sans-papiers. He told them: "To each martyred woman in the world, I want France to offer its protection, by giving her the chance to become French."(Le Monde, April 4th 2007). In the debate that led up to the second round of the election, Ségolène Royal, the socialist candidate, asked Sarkozy if he'd really let all women victims of violence (femmes martyrisées) into France if he could do so. He had to qualify the statement, saying he would trust organizations such as the shelter he'd visited because they only put forward exceptional cases.

We've heard this before: politics based on the exception, justified by the humanitarian ethic that is construed as apolitical. But this time around, exceptionalism is not about illness but about certain forms of violence that compromise bodily integrity. The transnational discourse on violence against women which has only been formally in existence and use since the early 1990's, was created as the lowest common denominator from the women's movements in the global North and South, taking the issue of bodily integrity as their common base. And drawing on my research to take this one step farther, it seems that issues involving sexuality or sexual violence represent the most basic form of suffering and oppression—and thus the most worthy of exception under the law.

In November 2003, France passed a law amending the 1998 conditions on entry and residence to give discretionary power to the prefectures for exceptional humanitarian circumstances. Cases mentioned that might warrant exception included women who were victims of violence, forced marriage, or repudiation—exoticized forms of violence. Even when the act referred to domestic violence, there was still an element of cultural otherness. Article 12 bis of the new law states that if a resident foreigner in France is the victim of violence and leaves the conjugal home before two years, this no longer means foregoing the chance to get papers. Formerly, you had to stay married and apply for papers through your husband. But now this two-year requirement can be waived for victims of violence.

Notably, however, when still in circular-form, this clause referred only to spouses who were resident foreigners. The underlying assumption was that French men are not violent. If you were the subject of violence by a resident foreigner, this exceptional clause may obtain. If, on the other hand, you were married to a Frenchman and you were the subject of violence, you could not access this legal exception. Although this clause was amended eventually due to protests by human rights groups and immigrant rights groups, the thinking behind it is quite clear. Another problem is that the clause fails to define what qualifies as violence: is it emotional, physical? Is blackmail included? The immigration office has the power to decide; it's up to their discretion.

A similar logic underlies the authorization by the French parliament in July 2004 to deport foreigners who call for discrimination against women. This amounted to an explicit attack on a particular imam (the imam de Vénissieux), in an attempt to get him deported. Whether he called for violence is beside the point. In calling him un-French, in deporting him, it renders invisible similar statements or actions by those deemed French. It uses this language of violence against women to justify policing the borders of the nation state, excluding immigrants and explicitly Muslim men of immigrant origin. In the process, it sanctions France as an enlightened place, as a country of superior moral behavior.

Also as part of my research in France I worked in a refugee appeals commission. Very few people were granted asylum, but those few who were were almost always configured as exceptional victims. New trafficking legislation appeals to the humanitarian need to save migrant women who are trafficked into France. They are given exceptional papers if they agree to denounce their traffickers or pimps.

In closing, I'll offer just a couple of thoughts on the relationship between religion and humanitarian exceptionalism, since this is a subject of interest for the SSRC project.

The quintessential victim, certainly in the cases I saw, is the Muslim woman. She is the exemplary suffering body who justifies wars in Afghanistan and Iraq, as well as the war on terror. According to this discourse, she is crying out for our help, asking to be saved.

Looking at the Bush administration, we see that it is it branded with a particularly religious, Christian ethic. But even organizations like MSF are religiously inspired. The founders of MSF, Bernard Kouchner and Xavier Emmanuelli, identified the Catholic Church as a forerunner and an inspiration. What they were trying to do when they formed this NGO was to advocate action based on emotion and compassion, not on reason; it marked a shift away from a dry form of Enlightenment rationality. Their critique of capitalism and capitalistic medicine involved a return to a form of secours, or Catholic charity that was given freely at the hospital or the Hôtel-Dieu. French humanitarians are returning back to a Catholic ethic that says that everybody can be treated, that it's a form of charity that everyone deserves.

Audience Q&A

Editor's note: The Q&A included several exchanges between Miriam Ticktin and SSRC President Craig Calhoun. Questions from other participants appear in italics.

CRAIG CALHOUN: Three thoughts: 1) You emphasize the extent to which illness is the normal route to the exceptional clause, but it's also presumably not understood as a moral failing in the same way as poverty may potentially be understood. 2) There is a long history of this particular relationship to the innocent, oppressed, suffering woman, going back to Edmund Burke and throughout the history of colonialism. How do you see that colonial history playing out today? Kouchner and his MSF get started from the post-colonial engagement with suffering and acts of charity. 3) In addition to the charity that you emphasize as a link to Catholic religious thought for MSF, there's an important Christian idea of bearing witness. MSF sets itself up as apolitical, but bearing witness entails constantly calling attention to failing states, which is part of politics.

MIRIAM TICKTIN: On your first point, I think back to the era of the Hôtel Dieu, the malades pauvres and les pauvres malades—the poor sick and the sick poor—where the categories of sick and poor are hard to distinguish. People were sick and happened to be poor, and the paupers also happened to be sick. It's conflated. But now there is a distinction being made for the sake of establishing legitimacy.

On your second point: The question of colonialism is there, absolutely, along with the notion of a civilizational index based on the status of women. At the same time, though, I'm convinced that there's something slightly different taking place, reflecting a new transnational discourse on violence against women. It's built into international law in a different way.

On the third point: Someone wrote to ask me, "What is the difference between the ICRC [International Committee of the Red Cross] and MSF? MSF says they are not a human rights organization, yet they have a human rights agenda to bear witness, to expose."

At the beginning, MSF tried to break with the colonial moment. It argued that you can no longer be political, that you have to save innocent victims. Yet it remains engrained with the Christian idea of bearing witness—of course it's political. I heard a former MSF president say that the distinction is that you describe what you see; you don't analyze it. As if you aren't bringing some interpretation to it!

How do the origins and implementation of exceptionalism in French law compare to those in American law? Do they go back to the same religious sources?

MT: Here, this kind of humanitarian exceptionalism clause could never have been passed. In the U.S., immigrants who are HIV-positive are deported. The French have a tradition of exporting their civilization, of trying to save other people. Today they would back it up on the grounds of human rights, on their belief in human dignity, on the principles enshrined within the Declaration of the Rights of Man and Citizen. It's not religious, but religion is implicit. The way it plays out draws on their colonial heritage.

I looked at MSF and Doctors of the World here in the U.S., and their way of treating illness is through affidavits. If you're making an asylum claim, illness can help, particularly in cases where the doctor says that the person has experienced torture or rape, and gives you a certificate showing compromised bodily integrity. There's a similar logic in place of the body being able to tell the truth: words cannot be believed but bodies can. But it plays out in a slightly different form in the United States: through asylum and these medical certificates. There are also clauses about HIV/AIDS cases, but it's decided state by state. France's humanitarian clause is exceptional, but it's also national.

How does the idea of emergency work?

MT: Craig could probably best explain.

CC: An emergency carries the connotation that it's urgent and that it's an exception. It's not the way the world system ordinarily works. It's not 60 years of emergency in Palestine.

MT: Right, you have to deal with it in the moment. This of course begs the question: How long can the moment last? How is time circumscribed? MSF would say, we're here for the moment because no one else is here. But once they begin to occupy that place, the "just for the moment" continues. No one else comes in because they are there. That's the contradiction of humanitarianism. It doesn't want to have political goals, yet it's a kind of political program.

Would you comment on your reading of the seemingly surprising alliance between Kouchner and Sarkozy? Do you see any connection between the thinking on welfare that's linked to Sarkozy and the possibility of a global politics of international compassion linked to Kouchner?

MT: In some ways, I wasn't surprised at all when I heard that Sarkozy had named Kouchner as his foreign minister. Kouchner was for the war in Iraq, and he split off from MSF to form Doctors of the World because he wanted more intervention. The MSF model was to deal only with emergencies, whereas Kouchner believes you should get in anywhere you can and save these poor people. He wants to see a broadening of the politics of compassion.

Sarkozy wins many votes because of his perceived compassion for immigrants. On the one hand, this is completely outrageous because he's also called them "scum" and has deported more of them than previous interior ministers (i.e. before he was president). But he did a few things like abolish the double peine—the double penalty—which provided that if a crime is committed by a resident foreigner, even if s/he has grown up her whole life in France, that person would be imprisoned and then deported to her so-called country of origin where s/he had perhaps never been. The double penalty was still occurring under the socialist government, and Sarkozy abolished it out of compassion for resident immigrants. It's a weird confluence of different logics that permits him to show compassion—but only on the basis of exceptions, of certain types of imagined individuals, not on the basis of political individuals.

You said that political asylum is not considered a humanitarian response in France in the same way it is in the U.S. Were there so many applications for asylum that it just became overwhelming?

MT: When I went to the refugee appeals commission, there was this idea that political asylum is not real, that everyone is clearly a liar, that there is trafficking in stories. Tamil Tigers were telling similar stories of rape, they said. There was never the thought that the stories were all similar because they were true. Rather, their idea is that if you can't believe people's words, then you back up to the body as the biological source of truth. Since I was last in France, there's been a movement to try to push for gender-based asylum claims—they have accepted people who are fleeing excision (FGM)—but it's never been officially recognized. It's always been classified as a humanitarian exception and has never been legalized.

How does this process of exceptionalism that you are describing work? Compassion for the Muslim woman is just temporary, so you'll be compassionate for two years but then she will go back to her foreign country and not threaten my Frenchness. Is that the logic behind it?

MT: I've been trying to go back and find out what's happened to people who have been accepted with the illness clause. Have they become citizens? Have they become integrated? Do they get assimilated? It's hard to follow because people don't want to be traced. We do know that, when they get to the point that they can ask for citizenship, all sorts of things get in the way. Suddenly, the doctor decides that their illness is no longer terminal or that there's a way that they can receive treatment somewhere else. So they rarely get integrated, and the only way they can be accepted is as second-class, disabled objects of charity, not as citizens. As to the Muslim women, the reason to save them is so that they can become like everybody else. They will take off their veils, after which they can be assimilated and become fully French—whatever that means.

CC: There's an interesting set of questions surrounding exceptions: the extent to which universal rules always produce anomalies that demand exceptions. If you articulate a universalistic rule, you guarantee that there will be anomalies. These exceptions empower those with the capacity to grant the exceptions, whether it be the state or individuals.

Take the example of capital punishment: vastly more people are sentenced than are executed. It's not just the current situation, but in 18th-century England we saw all sorts of versions of this. It becomes an apparatus of affirming the power of those who are able to determine who is executed and who is not. That can be the power of the state but also the power of the connections that people mobilize in their defense to secure their exceptional status. The deserving and the undeserving, asylum in general, the whole idea must be traced to a particular individual's circumstances. You can't be a class of people; it has to be you as an individual.

At the margins of what you're talking about, we can see a logic, an interesting twist on the Enlightenment vision of a universalistic rationalism that sets up these rules, including a citizen's universal rights, and yet the Enlightenment becomes a quasi-international claim of Europeans. Calling violence against women un-French and deporting this imam renders invisible French violence against women. It renders such violence ethno-cultural: we are ethnically those who are civilized and enlightened, who don't do that. In a paradoxical way, the category of the enlightened becomes a particularistic claim.

We see this in the Netherlands, too, with the whole set of debates over Islam. We are the people of Erasmus, therefore we are enlightened, and therefore we shouldn't let in those people who aren't enlightened because we won't be enlightened anymore. In this context, an odd reversal of the notion of French universalistic nationalism is producing, ironically, an ethnic Frenchness couched in terms of universalist categories.

MT: That's exactly what's happening. And the way it has to happen is by erasing that and focusing on the body. The subject who is saved is not a rational person; it's just a body.

CC: Implicit in this is the production of two cultures. A culture that has these enlightened values does the saving against those other cultures that lack those enlightened values and produce the violence—although now enlightened turns out not to be universalistic anymore.

MT: This is what happened in the colonial period.

CC: That's why the burden, the scandal of empire.

I'm remembering what happened with the camps in Rwanda. Doctors without Borders seemed to distinguish themselves from other human rights groups. Other agencies at the time said their job was to help anybody who has been hurt. But when I spoke to MSF people, they had a different attitude. From what you have said, it's this notion of compassion that leads them to be different.

MT: The reason that MSF pulled out from the camps in Rwanda was their sense that if they were going to be complicit in a genocide, they could no longer be here. Realizing that their efforts would get mired in politics, they left to keep their humanitarian neutrality. That is the way they distinguish themselves from the human rights groups.

Now MSF admits that they will always need to make deals with the devil, for instance, by bargaining with warlords to get access to people in need. They can't help but being embedded in morally dubious situations. But once they saw that Rwanda was a genocide, then it qualified as political and they had to get out. They respond and expose, leaving others to draw conclusions. They would never advocate going to war for any political solution. It's an incredibly slippery slope.