State Crime: Current Perspectives

349 Pages·2010·0.875 MB·English

by  Dawn Rothe (editor), Christopher Mullins (editor)

State Crime:
Current Perspectives
Critical Issues in Crime and Society
Raymond J.Michalowski,Series Editor
Critical Issues in Crime and Society is oriented toward critical analysis of
contemporary problems in crime and justice.The series is open to a broad
range of topics,including specific types of crime,wrongful behavior by eco-
nomically or politically powerful actors, controversies over justice system
practices,and issues related to the intersection of identity,crime,and justice.
It is committed to offering thoughtful works that will be accessible to scholars
and professional criminologists,general readers,and students.
For a list of titles in the series,see the last page of the book.
State Crime:
Current Perspectives
h
Edited by
Dawn L. Rothe and
Christopher W. Mullins
Foreword by
William J. Chambliss
Introduction by
M. Cherif Bassiouni
Rutgers University Press
New Brunswick,New Jersey,and London
LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA
State crime :current perspectives / edited by Dawn L.Rothe
and Christopher W.Mullins.
p.cm.— (Critical issues in crime and society)
Includes bibliographical references and index.
ISBN 978-0-8135-4900-2 (alk. paper) — ISBN 978-0-8135-4901-9 (pbk. : alk.
paper)
1. Political crimes and offenses. I.Rothe,Dawn,1961– II.Mullins,Christopher W.,
1971–
HV6273.S73 2010
364.1(cid:2)31—dc22
2010008404
A British Cataloging-in-Publication record for this book is available
from the British Library.
This collection copyright © 2011 by Rutgers,The State University
Individual chapters copyright © 2011 in the names of their authors
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Contents
Foreword vii
William J. Chambliss
Preface ix
Acknowledgments xi
Introduction: Crimes of State and Other Forms of Collective
Group Violence by Nonstate Actors 1
M. Cherif Bassiouni
Part I Crimes of the State
1 Revisiting Crimes by the Capitalist State 35
Gregg Barak
2 The Crime of the Last Century—And of This Century? 49
David O. Friedrichs
3 Nuclear Weapons, International Law, and the
Normalization of State Crime 68
Ronald C. Kramer and David Kauzlarich
4 Empire and Exceptionalism: The Bush Administration’s
Criminal War against Iraq 94
Ronald C. Kramer and Raymond J. Michalowski
5 Do Empires Commit State Crime? 122
Peter Iadicola
6 Burundi: A History of Conflict and State Crime 142
Kara Hoofnagle
7 Legal Precedent, Jurisprudence, and State Crime:
Pinochet and Crimes against Humanity 162
Dawn L. Rothe and Michael Bohlander
v
vi Contents
Part II Controlling State Crime
8 Reinventing Controlling State Crime and Varieties
of State Crime and Its Control: What I Would Have Done
Differently 185
Jeffrey Ian Ross
9 Complementary and Alternative Domestic Responses
to State Crime 198
Dawn L. Rothe
10 The Fairness of Gacaca 219
Roelof H. Haveman and Alphonse Muleefu
11 Assassination of Regime Elites versus Collateral Civilian
Damage? 245
Michael Bohlander and Dawn L. Rothe
12 How to Restore Justice in Serbia? A Closer Look at
Peoples’ Opinions about Postwar Reconciliation 262
Stephan Parmentier, Marta Valiñas, and Elmar
Weitekamp
13 The Current Status and Role of the International
Criminal Court 275
Christopher W. Mullins
References 293
Contributors 319
Index 321
Foreword
When i ask my students“What makes an act a crime?”the most common
answer, even among seniors majoring in criminology, is “Acts that violate
cultural norms.”The answer raises more questions than it answers.I usually
follow the question of what makes an act a crime with another:What is the
difference between civil and criminal law? That question is usually greeted
with silence.
While it is true in a tautological sense that criminal acts violate societal
norms,this answer misses much more than it hits.First and foremost,fortu-
nately,not all acts that violate societal norms are criminal.When a congress-
man screams “You lie!” at the president of the United States during the
president’s address to Congress, the congressman is certainly violating a
widely held societal norm, but it is not a crime. More mundane acts like
loudly burping in a restaurant,eating loudly with your mouth open,or not
shaking hands when someone’s hand is offered as a greeting all violate widely
held U.S.societal norms,but none are crimes.
Perhaps more important is the fact that there is rarely consensus even on
widely held societal norms.In contemporary America the norms that gener-
ate the most widespread disagreement over whether or not they should be
crimes include the use of marijuana and other so-called illicit substances; a
woman’s right to have an abortion and,if so,at what stage of pregnancy or
under what circumstances; and, most recently, the use of cell phones while
driving.Even the most widely held norms are riddled with exceptions.The
norm “Thou shalt not kill”does not apply to police officers acting in the line
of duty,executioners in penitentiaries,soldiers in battle,people acting in self-
defense,or individuals coerced into killing someone.
The point is that the answer that criminal law is a simple,straightforward
codification of widely held norms is misleading.For an act to be a crime,it
must meet at least six criteria:
1. There must be a written law prohibiting an act or requiring the per-
son to act.
2. There must be a punishment prescribed for acting or failing to act in
a certain way.
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viii Foreword
3. There must be an act.That is,the person has not committed a crime
simply because he or she has thought about it.The individual must
actually take some positive action toward carrying out the crime.
4. There must be a harm.
5. The actor must intend to commit the act.In Latin this requirement is
called mens rea.
6. The individual’s act must have caused the harm.
For centuries criminologists have debated whether or not the foregoing legal
definition of crime is sufficient for the social scientific study of crime.The
problem with the legal definition is that it restricts scientific inquiry to those
acts defined by legislators as criminal.Given the political nature of legislation,
it is clear that a legal definition does not lead to a sociologically homogeneous
set of behaviors. Rather it leads essentially to the end result of a political
process that does not include some of the most harmful acts committed by
individuals, especially those committed by the people who are making and
enforcing the laws.
Recognizing that a strictly legal definition limits the scope of crimino-
logical inquiry has led in recent years to the broadening of the conception of
crime to include social harms.One need only reflect for a moment to realize
that historically some of the most heinous social harms were not criminal but
in fact were legally sanctioned:the murder of eleven million Jews,Gypsies,and
homosexuals in Nazi Germany,the slaughter and forced removal to reservations
of Native Americans,and the forced incarceration of Japanese Americans in
concentration camps during World War II,to name a few.
In this magnificent collection of research on state crime,the advantage of
a social harm approach to the study of crime is demonstrated.While some of
the state crimes explored in this volume are legally prohibited acts, others,
although clearly extremely important social harms,have escaped the legisla-
tive process that transforms social harms into crimes. In most cases serious
social harms escape legislative action,because it is not in the interest of the
ruling class or the legislators to define them as crimes.The fact that some of
the most serious social harms occurring in the twentieth century are not
defined as crime makes the study of state crime in the global age even more
urgent.It is with great satisfaction,then,to have a collection of outstanding
researches addressing the issue of state crime in the global age.This volume
will not only be widely read,it will also stimulate further research that will
continue to expose and explain the social,political,and economic forces that
lead to state crimes,and which in turn should lead to social policies curtail-
ing this all too prevalent characteristic of the modern state.
William J.Chambliss
Preface
When we first began discussing editing a collection of classical and current
research on crimes of the state for a book, we envisioned including some
reprints and a couple of new pieces to serve as a one-stop reference for schol-
ars and students of state crime.As such, we wanted to emphasize not only
crimes by states but also responses and/or controls. However, as time pro-
gressed,it seemed to make more sense to ask the authors of the classical works
(Barak 1991a;Chambliss 1989;Friedrichs 2000;Kauzlarich and Kramer 1998;
Ross 1995,2000b) to revisit their original works,expanding and/or revising
upon their previous research,to give a bit of the old with the new.Addition-
ally,we wanted to include previously unpublished pieces,as well as include
scholars beyond the walls of U.S. academics.We are most pleased that we
accomplished all of the above.
As William Chambliss’s presidential address to the American Society of
Criminology (1989) is often cited as the impetus behind the criminological
interest in crimes of the state, we opened this book with his foreword.We
were also honored to have Cherif M.Bassiouni contribute an introduction.
As one of the leading forces behind the development of international crimi-
nal law,the International Criminal Tribunal for the former Yugoslavia,and the
Rome Statute, his insightful introduction hones in on the key issues sur-
rounding impunity, accountability, and realpolitik: thus providing a perfect
opening to the field of state crime and subsequent examples of case studies
presented here.
From that, the book begins with an introductory chapter briefly high-
lighting not only the development of the field but also the definitional debate
(e.g., a legalistic or social harm approach) that continues to be an issue for
some scholars of state crime.The first several chapters revisit original works
with excellent expansions and/or revisions of thoughts and research, high-
lighting the advancements of the field.Indeed,the area of state crime contin-
ues to expand its boundaries and its impact.
This book represents such developments by offering case studies not only
of capitalistic state crimes motivated by a desire for empire or economic and mil-
itary supremacy,but also of current events and various types of governmental
ix
x Preface
regimes.Here issues of motivation and opportunity include not just the ideo-
logical, economic, or military interests, but also issues of ethnocism, political
power and representation,scarce resources,disparities,religion,postcolonial his-
tories,and governments that are weakened,illegitimate,or overtly authoritarian.
Beyond these themes,issues of impunity,lack of accountability,and social justice
emerged in many of these contributions,which should come as no surprise since
the history of head-of-state impunity illustrates the level of accountability for
those most responsible for crimes by the state.
Given this, the second section pays particular attention to issues of
accountability,impunity,and social justice that are available and/or have been
initiated in an effort to address these horrific forms of state criminality,
taking into account not only the progress made in the field of state crime
control but also in the world over the past two decades.Chapters offer case-
specific examples of social justice mechanisms and accountability, including
domestic law,localized responses,moral and ethical dilemmas,restorative jus-
tice, and the international institution of control. Here the issue of “ought”
versus “does”becomes visible as the extant body of international criminal law
and the cry for the end of impunity do little to address the dissonance
between what is and what should be.As noted in the introduction,much of
this dissonance is the result of realpolitik.
As scholars of state crime,our hope is that someday we will see justice
for those victimized by crimes of the state;an equal application of the rule of
law,even for heads of state;social justice that moves beyond accountability to
incorporate measures of inclusion and victims’ needs; and, ideally, no more
cases to analyze as crimes by states cease to occur.