CLT recently featured a translation of E.B. Pashukanis’ 1929 article “The Right of Asylum and the Practice of Bourgeois Governments,” originally published in the journal MOPR under the auspices of the International Red Aid (IRA). There have been few studies of the IRA and its MOPR journal to date, and it is important to note that Pashukanis’ defence of the right of asylum was hardly the first or last to appear in this context. The IRA was an overtly political organisation concerned with safeguarding the right of asylum. Noticeably absent in today’s global politics is a comparable organisation with a similar political mandate.^[1]

Pashukanis’ diagnosis of the practices of bourgeois governments regarding asylum and criminal law remains strikingly relevant. In what follows, we turn to contemporary analysis, pinpointing continuities and changes concerning the treatment of political and “alien” enemies in capitalist democracies. 

From alien solidarity to alien enemy

Just as the right to non-extradition had evolved dramatically in the century before Pashukanis’ time, so too has the right of asylum. Originating as a right based on political solidarity, it developed into a universal human right, enshrined in the 1951 Refugee Convention. Now, nearly a hundred years after Pashukanis described how bourgeois states undermined the right of asylum they formally proclaimed, history is repeating itself – with new legal instruments and a new racial dimension.

Immediately upon taking office, President Trump declared a national emergency and ended access to asylum at the southern border by executive decree. Simultaneously, the CBP One app, though criticised, was scrapped overnight. Those who used it to enter the country lawfully were subsequently arrested at courthouses and immigration hearings. Temporary Protected Status for nationals of ten countries was stripped, allowing for the deportation of over 1.6 million people. And in late 2025, USCIS was ordered to halt all asylum decisions pending re-examination of approved cases from some 75 countries. In parallel, ICE began deporting asylum seekers using thug-like tactics eerily reminiscent of Pashukanis’ descriptions of bourgeois police forces persecuting communists and Jews in 1930s Europe.

The accompanied use of the Alien Enemies Act of 1798 – a wartime statute never previously used outside war – is all the more concerning. It was deployed in March 2025 to deport at least 137 Venezuelan nationals to El Salvador’s CECOT maximum-security prison. Among those deported were people with pending asylum claims, valid protection status, and in one case, a court order banning deportation. The administration proceeded regardless, resulting in due process and habeas corpus claims. In the end, even the heavily Trump-leaning Supreme Court found violations of their right to judicial review. 

The still somewhat intact rule of law remains a defining difference between Pashukanis’ time and ours. But while procedural rights did prevail, the damage was done. The Alien Enemies Act allows for a collective enemy designation: Venezuelan nationals were categorised as members of a “hybrid criminal/terrorist state”, collapsing nationality, ethnicity, and supposed gang membership into a single category. This designation of political “enemy” in executive action is the very mechanism that was used against communists in Pashukanis’ time, only now reimagined through a synthesis of white supremacy and techno-capitalism.

Interestingly, with its anchor in foreign relations, the Alien Enemy Act mirrors the first legislation explicitly providing the right of asylum within national law: the British Alien Act of 1905. But it does so in reverse; instead of solidarity, it is based on enmity. It appears that the same pendulum swing Pashukanis described is now being repeated: From Alien Solidarity – British Act and Universal Human Rights – to Alien Enemy – bourgeois prosecution of communists and MAGA prosecution of immigrants and asylum seekers.

In the EU, an ever-growing system of norms and a plethora of legal workarounds have resulted in what is called the “externalization” of asylum procedures. Whereas the US undermines asylum through executive action and outright denial, the EU does so through Kafkaesque complexity and hollowing out.

The EU Pact on Migration and Asylum changes almost every detail about asylum procedures while leaving its “foundations” intact. While EU legislation used to call for a “connection” as a requirement for the safe-third-country concept (STC), the new regulation opens the door for various outsourcing concepts. Alongside this, the list of safe countries of origin (SCO) was extended – now including Bangladesh, Morocco, Tunisia, Egypt, India, and Colombia. Finally, the new Return Regulation creates “return hubs” in third countries. And besides all these legal workarounds to externalise asylum responsibility, the reform is hollowing out existing procedures as well – be it through acceleration, detention, or via the abolition of legal remedies.

The racial logic of the EU system operates implicitly. Through the new SCO rules and other measures of externalization, more and more people from the Global South are precluded from protection. In this sense, the European asylum policy is more comparable to what supposedly “hospitable” states like Austria or Belgium did in Pashukanis’ time. The right of asylum is upheld on paper but hollowed out in practice. And the legal mechanisms did not change dramatically: Extradition agreements with third states, police expulsions, detention, and general asymmetrical treatment of favored and disfavored refugees all have their precise contemporary equivalents.

From the outset, the “Rights of Aliens” were implicitly motivated by colonial and thus inherently capitalist interests. But because the contemporary right of asylum is understood as a universal human right, the legal tactics have become more nuanced: Neither Washington nor Brussels formally repudiates refugee protection as a moral or legal claim. But the right of asylum is endangered substantially nonetheless – through US emergency designations and collective enemy categories, or EU responsibility outsourcing and procedural streamlining. Whether in Pashukanis’ time or our own, the asylum double standard persists.

From international criminal justice to enemy criminal law

Pashukanis foresaw not only the repeated attacks on the right of asylum, seeking to strip it of its substance, but also what has since been characterised by Günther Jakobs as “enemy criminal law” (“Feindstrafrecht”). Jakob’s analysis, that two unnoticed types of criminal law developed in liberal democracies—one for citizens, where the rights of due process properly apply, and one for political enemies, where criminal law gives way to public protection—appears to be substantiated by recent events. In the context of fearing terrorist attacks and other so-called “political crimes”, many Western nations are engaged in creating new criminal law provisions or revisiting existing ones. Despite upholding the core liberal precept that “mere thoughts cannot be punished”, it is evident that material provisions effectively do just that.

To be sure, there are exceptional circumstances where the state must intervene to safeguard itself, its critical infrastructure, and the interests of its citizens, as well as the principles of democracy on which its legitimacy rests. However, as Pashukanis suggested and Jakobs has since observed, the issue with the use of criminal law for public protection is that once “enemy penal law” (“political crime” in Pashukanis’ terminology) is accepted and established as a (pseudo-)legitimate category of criminal law, the distinction to what we might regard as “ordinary crime”, or “citizens’ penal law” (Jakobs, Pawlik), is increasingly blurred.

Several notable commentators, such as Husak, Duff, and Puschke, have expressed criticism regarding the present utilisation of criminal law as a means of public protection in Germany, the UK, and the US. Nonetheless, these voices have remained neglected. Criminal law is typically regarded by politicians as a cost-effective measure for instilling a sense of safety among citizens. Yet we should be wary of the hidden price: it risks giving up on core democratic and humanistic values, like free speech, privacy and, ultimately, equality and humanity.

Not surprisingly, this expansion of domestic criminal law has gone hand in hand with growing attacks on international criminal justice. The International Criminal Court embodies the idea that there are crimes that concern “the international community as a whole”. Despite the legitimate criticism of the Court by non-Western states, it is the antithesis of what Pashukanis deemed “an international police organization” against the working class. In contrast, the court has the authority to prosecute high-ranking political figures and has recently issued warrants against Putin and Netanyahu. Crucially, it upholds the principles of the rule of law and the distinctiveness of criminal law over public safety. Even when an individual is supposedly responsible for mass atrocities, they are still entitled to a trial that ensures all rights of due process and defence.

At the end of WWII, the Allied forces were faced with a dilemma: whether to execute the Nazi perpetrators immediately or to subject them to a trial for their crimes. They ultimately decided on the latter, a decision that was primarily influenced by the US’ argument, underscoring the fundamental principle of the rule of law, regardless of the nature of the alleged crimes. Accordingly, a “right to be punished” can be regarded, on a contractarian understanding, as a fundamental human right, serving as a bulwark against the extrajudicial persecution of adversaries. Of course, this is only applicable in countries where the rule of law is upheld and where punishment is at least in some sense equitable and proportional (although Pashukanis would contest the idea of “proportional punishment”). In contrast, when a state has effectively transformed its domestic criminal law into “enemy penal law”, the human right to political asylum becomes a necessary safeguard against the capriciousness of that state. 

Today, the United States is unabashedly trying to dismantle the ICC in favor of enemy penal law. Trump has also redefined the category of political enemy. From his perspective, the predominant threat stems from “left-wing extremists”, in which are included not only “Antifa”, but also award-winning, anti-hate-speech activists. When efforts to defend democracy are denounced as “left-wing extremism”, it becomes clear how easily the concept of “political enemy” can be reinterpreted. It is therefore imperative to assess the risks associated with abandoning the rule of law in favor of a seemingly “expedient” approach to fighting “enemies” through the instrument of criminal law.

The origins of “Crimmigration”

Despite a hundred years of progress in the rule of law and human rights, Pashukanis’ diagnosis of ideological primacy remains highly topical. The US today explicitly invokes the alien “enemy”, and if that was once the communist refugee, it has now become the humanitarian refugee. In the EU, universal rights are increasingly hollowed out and permeated with penal instruments like detention. This merging of legal regimes has long been coined “crimmigration”, usually suggesting a problematic novel fusion. Re-reading Pashukanis can show us that this story is backwards: These regimes have been intertwined from the beginning, and their separation has been a relatively recent historic achievement. Today, this achievement is being dismantled again. The widespread assault on the right of asylum calls for nothing less than robust international solidarity and vigilant political defence of asylum rights and the rule of law. 

^[1] Historically, the IRA’s rise and dissolution mirrored that of the international communist movement. As an illustrative example, Felix Halle, a Weimar-era communist lawyer, lead defence counsel for the German section of the IRA, and a contemporary of Pashukanis, delivered an impassioned defence of the right of asylum in 1925, identifying the pressing dangers posed by extraditing states, in “Die politischen Flüchtlinge und das Asylrecht” [Political Refugees and the Right of Asylum], reprint of speech delivered by Halle at the First Conference of the German Section of the “Red Aid”, Berlin, 17 May 1925.  Like Pashukanis, Halle was ultimately a victim of Stalinist Terror.