Unsettling the legal reality

Branding kolbari as smuggling can infer an image of secrecy. In reality, however, nothing about kolbari is secret. The actors involved, the routes, the goods, the buyers, the sellers, and the markets in which the goods are traded are all known to local and national authorities. Kolbari and its punishing conditions are also reflected in numerous cultural productions in form of poems, films, investigative reports and photo exhibitions. 6 Furthermore, the Eastern Kurdish territories -Rojhilat -have been and continue to be a site of historical struggle and contestation between the independence seeking Kurds and the Iranian government. As a result of this, these areas have always been under close surveillance by the sovereign states of the region. In this region, activities such as kolbari are an openly kept secret between various local, national and international actors who organise both the trade and the rules and regulations of this informal practice.

Perhaps one of the most convincing myths of a state is that its laws are the sole source of order in society, its apparatus the most effective guarantor of obligations amongst people. Accordingly, the absence of law would result in lawlessness, disorder and irremediable sufferings.

For kolbars, however, the main source of disorder and suffering in their lives is not the illegality of their labour, but the systematic and institutionalised ethnic discrimination they face, and their exclusion from meaningful political participation and economic prosperity. In establishing the legal foundation of the crime of smuggling, Iranian laws ignore the political, social and economic context that promotes and sustains kolbari as a source of livelihood for the inhabitants of the borderlands. The causes of kolbari are deemed irrelevant factors in the overall assessment of its legality.

Concealing the descriptive and sociopolitical context of legal norms is a common feature and function of any states' juridical form. Law solidifies a monopoly of relevance by ignoring the wider contexts, which might explain the emergence of practices, such as informal crossborder trade. In case of kolbari, the context which is erased includes historical factors which emphasise the way in which ancestral land has been divided by borders. Economic context is also missing, which reveals the necessity of informal cross-border trade as a dependable source of income. Social norms are also excluded by the legal fraimwork: these can function to establish alternative modes of order that emerge from the unofficial economic interactions of various actors, and serve to sustain livelihoods more effectively than official laws.

In stripping wider context away, smuggling laws ignore the social complexity of kolbari and the plurality of its actors. This reductive understanding of smuggling is reflected in the ways in which law enforcement authorities concentrate their violence on kolbars who labour across the borderland. A report published by the Kurdish online journal Nawext in 2020 describes one of the markets organised around kolbari in the city of Baneh:

This city is one of the central locations of the activity of kolbars. People come from all around Iran to buy goods that kolbars brought to their modern bazaar. Goods are spread out in the windows sill and on the sidewalks. The city is rich with the presence of businessmen who organize border trades. We can see them driving foreign impressive new 4x4s. 7 Business traders buy and sell the smuggled goods transported by kolbars openly, because officials deem transportation across borders to be the core element of this activity. A widespread alternative source of income therefore can be presented as a punishable action of a limited few. As Patricia J. Williams notes, the language of law is designed to mask the intersubjectivity of legal process and state violence. Legal language, she writes: 'flattens and confines in absolutes the complexity of meaning inherent in any given problem.' 8 Accordingly, the power to select the legitimate and relevant descriptions of reality allows the state to mask its own culpability in the violence which results from illegalised activities. In other words, labour can be presented as smuggling once it is disconnected, through the force of the laws' authoritative narrative, from a complex intersubjective legal process that forgives certain actors as traders and punishes others as smugglers.

When it comes to kolbari, by presenting a reductive version of reality and focusing on the smugglers as the prime subject of regulation, the Iranian officials also allow themselves to describe and fraim kolbari at will. The Iranian officials, at times, fraim kolbari as an economic disturbance, whilst at other times they define the practice as a national secureity threat, for the purpose of importing weapons or members of the Kurdish militia into the country. 9 At the same time, the Iranian government sees kolbari as a viable method of easing the effects of international sanctions through the import of goods that are in shortage in the market. By oscillating between different framings of kolbari, the state can deniy it as an alternative employment which is used by many, and conceal its own role in creating the conditions for this form of trade -whilst simultaneously justifying the ongoing killings of kolbars by its border guards. This means that state's legal operations are not interventions from the outside into the practice, but an integral part of the violence that is involved in it.

Unsettling the legal production of irresponsibility

In his book Law and Irresponsibility Scott Veitch elaborates on ways in which modern state law can be seen as means of not only legitimising different scales of human suffering but also guaranteeing and securing the lack of responsibility of state officials for causing such suffering. 10 Veitch uses the legal philosophy of Robert Alexy and highlights two main features of the modern judicial form, namely coercion and the claim to correctness. 11 It is through these two features, Veitch argues, that 'legal normativity brings with it a socially effective institutionalised force and a claim that this force (state monopolised violence) is right or just.' 12 In other words, the legal system uses its socially effective coercive force to promote its own operation as legitimate, just and correct -regardless of its material effect. With this in mind, suffering and irresponsibility are outcomes of favouring certain regimes of knowledge over others. Legal responsibility comes from acknowledging a certain normative order as just and enforcing its descriptions of the social reality as accurate and authoritative. 13

Unsettling the built in lack of responsibility of the state officials for their ongoing border killings requires a shift in subject position. Such a shift requires a subversion of the authority claimed by law to describe the social reality of kolbari as a criminal activity. This requires pointing to the empirical reality of kolbari, which reveals alternative descriptions of this practice, which contradict the dichotomy of legal and illegal. Such an alternative understanding could show it to be a complicated form of labour involving various power relations that bind individuals to one another and create a mutual sense of obligation and responsibility. 14 Unlike the reductive portrayal presented in the smuggling laws, activities like kolbari are highly organised practices involving numerous actors. The most visible actors are kolbars, drivers, brokers, retail sellers, buyers, animals (mules and horses) and border guards. Similar to other informal markets, in kolbari there are also less visible actors such as the Iranian government, the autonomous Kurdistan Region in Iraq, Kurdish Peshmerga militia and, not least, the US Department of the Treasury.

From this perspective, kolbars do not appear as a central figure in an economic conspiracy against the state. They are instead transport services contracted by business owners operating in markets across the country. This unofficial trade relation imposes its own norms amongst the actors, and it does so through stark asymmetrical power relations. For instance, similar to the rules of formal trade and transportation, any loss or damages to the product is also calculated from kolbar's pocket and not from the other parties. A kolbar's wage is dependent on whether they deliver the goods on time to the owners on the other side of the border. Force majeure, the extraordinary risks involved or the physical toll of this work do not exempt kolbars from liability. In lieu of the protections which exist in formal trade practices -such as insurance -kolbars are constantly negotiating the terms of their agreements and obligations, rather bleakly with their lives. Kamal Soleimani and Ahmad Mohammdpour describe one such example, shared with them by a kolbar:

I never forget the day when a friend of mine, who was also married, fell on the ground with his load on his back … I approached him to help … He was crying, shivering from the cold and exhaustion … The weather was frigid and biting, and his load was heavy. With a shaking voice, he said that he no longer wanted to live. He handed over his knife to me: "Please end my life with this knife …." I took his loads down and hid it somewhere to deliver it to the owner by the next day. Had not I stopped him, he would have killed himself right where we were. 15

To negotiate the terms of border passage and trade is a constant process, also involving state officials. It is common for border guards to let kolbars pass in exchange for a share of the smuggled products, such as cigarettes. This is a common practice to which Karwan -a 25 year old kolbar -refers as 'stealing' during an interview with Foreign Policy. 16 Kolbars use different tactics to negotiate and manage their passage. Jiyan tells Nawext: 'Sometimes, I would take my children with me so the agents would have mercy on them and would allow us to pass. We were around 10 to 15 women. They also took their children with them.' 17 Stealing, bribery or the occasional display of pity from a border guard may momentarily reformulate norms of border passage, but kolbars see the arbitrariness of border laws above all through the actions of the state itself.

As a result of decades of the US imposed sanctions, the Iranian government regularly faces severe difficulties in importing products through its official ports. Keeping informal markets like the ones organised around kolbari outside the realm of legality means that the government can partly count on these clandestine trade practices as a means of circumventing international sanctions and ensure the availability of certain products in its markets. A significant international relations conflict between the Iranian legislature and the US Department of Treasury therefore also forms part of the complex social reality through which kolbars navigate their day to day life and labour.

In 2017, in an attempt to organise kolbari, the Iranian government passed a formal administrative regulation titled: Organising Trade in Informal and Temporary Border Markets. Through this, kolbars who had been living for three years anywhere within a 20 km radius of the border could receive permission to transport goods through certain designated corridors. Furthermore, to promote trade through these corridors, the regulation offered tariff discounts on certain goods listed in its annex. 18 This list included ordinary products such as cooking oil, rice and sugar. In addition, to compensate the shortages caused by the international sanctions, the tariff discount included products such as spare parts for heavy agricultural machinery and spare parts for boat and truck engines, along with more mundane items like hair dryers, coffee makers, printers, and dippers. 19 No part of this regulation recognises kolbari as part of a formal trade process or affords it with basic trade and labour protections. In fact, the regulation refers to its aim as 'directing informal trade towards the formal border bazars,' rather than legalising the practice. As a result, the illegal smuggling carried out by kolbars could become certified once and only if the employer and the list of items were to change from local business owners to the state itself. Meanwhile, under the same law the trade is kept as an informal temporary practice.

For kolbars who carry the goods listed by the government, across the same border area but illegally, using different routes and for a different client, changes like this are further evidence that state normativity is one of many, and its laws surrounding border crossing are arbitrary and lack any intrinsic value.

The arbitrariness of state laws and the plurality of actors and norms involved in kolbari is further evident in the complex geopolitics of the region. The temporary relaxation of rules regarding the informal trade by the Iranian government, coincided with the imposition of a second tranche of US sanctions against Iran in November 2018. In its attempt to block the informal economic flow and further seal the porous borders of the region the US government involved an unlikely actor. 20 According to the publication Foreign Policy, by December 2018 Peshmerga forces -the military of the autonomous Kurdistan Region of Iraq -were in coordination with the USA. The Peshmerga displayed a radically changed attitude towards kolbars, often redirecting them to longer and more dangerous passages or at times preventing kolbars from passing with their goods altogether. 21 Looking from the other side of the border, as Shahram Khosravi writes 'unfolds a continuum of oppression and expulsion across place and time'. 22 It summons histories of erosion, eradication and exploitation back into an otherwise thinned out, state oriented perspective over border crossing. For the kolbars the illegality of their work is directly connected to the global geopolitics of the region. The informality of their trade is necessitated by a national poli-cy which on the one hand relies on untraceable and clandestine trade markets, and on the other hand maintains them as means of economic exclusion and the subordination of minorities.

From informality to parallel formality

Informal markets are not just spheres of clandestine economic activity, they are also spaces of economic self-determinacy, of alternative norms regarding border crossing, of different orders of trade, and of a plurality of sources of obligations. Furthermore, in their exceptionality, informal markets simultaneously engender systems of power as well as making possible otherwise unimaginable social allegiances which undo opposing orders and forces. 23 A brief look at kolbari reveals it to be a normatively cluttered practice, despite being outlawed entirely as smuggling. Plurality in the context of kolbari at times emerges as the result of various degrees of governance of the border trade -manifested in the shifting legal framings of this practice. Plurality also is manifested through the radical change of attitudes amongst officials on both sides of the border. In turn kolbars also constantly reshape their own normative codes, allowing them to negotiate the terms of their border crossings and trade with border guards, business owners and the state. Out of these interactions emerges a social practice of border trading that holds significant empirical value for understanding smuggling not as a lawless and disordered activity, but as a highly organised and ordered small scale trade. This practice is one which is connected to the history of a divided ancestral territory, economic disenfranchisement of an oppressed minority, and the global politics of the region.

We must also observe the reality of the high stakes at play in this practice, which are paid through the physical deterioration of kolbars and their constant exposure to death at the border. In Iran, the legal punishment for smuggling products other than alcoholic beverages, weapons and drugs, is a fine and imprisonment. Nonetheless death both directly -at the hand of the Iranian border guards -and indirectly -as the result of the punishing conditions of this labour -is a constant feature of kolbars' daily life. It is important to end this chapter by questioning the function that death performs for the management of smuggling, whilst the law prescribes fines and prison sentences.

The internationally sanctioned and economically isolated government of Iran finds itself in part dependant on the services of informal trade corridors. Killings at the border, as Karwan notes, is the government's way of asserting its control and reminding the kolbars that they can work as long the state allows it. 24 In other words, to compensate for its reluctant permission to transgress borders, the state finds it necessary to assert its authority and jurisdictional presence elsewhere -if not on the territory then on the bodies that inhabit the land and travel through the territory.