Antagonismo penale o agonismo politico? Reimmaginare le politiche contro il traffico e la tratta alla luce delle esperienze dei migranti

This article critically examines the use of criminal law in managing immigration in Italy, with a particular focus on human trafficking and migrant smuggling. It argues that both governments and human rights activists tend to adopt a stance of “penal antagonism”, targeting those who facilitate such practices as the main enemy and adopting criminal repression as the primary response. The concept of “border penality” is introduced to describe how penal power is used to both protect and counter border crossers. The article critiques this penal approach to migration, showing how it not only fails to address abuses but also leads to an increased number of migrants incarcerated, diverting attention from the fundamental role of anti-migratory policies in fostering conditions of exploitation and violence. Drawing on Chantal Mouffe’s theory of "political agonism”, the article advocates for a paradigm shift: instead of focusing on criminalising traffickers and smugglers, it suggests engaging in an agonistic confrontation with state institutions responsible for migration policies. Through both institutional and extra-institutional struggles, state action and resources should be redirected towards more migrant-friendly policies. Although transitioning from penal antagonism to political agonism is hard without broader changes to the global conditions driving migration and securitarian policies, efforts in this direction could still reduce the reliance on “border penality”, thereby mitigating a significant source of violence against migrants.