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State Crime, Human Rights, And the Limits of Criminology<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o:p></o:p>

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THE AIM OF THIS ARTICLE IS TO SUGGEST HOW CRIMINOLOGY CAN REMEDY ITS neglect of the important phenomenon of state crime, without adopting such a broad definition of "crime" as to destroy what coherence criminology has as a distinct field of study. To assess the universality of our approach we employ examples from two different state traditions, Anglo-American and Turkish. Our definition allows us to examine countries as diverse as Turkey and the United Kingdom from the perspective of a continuum, rather than as two discrete, incomparable state formations -- authoritarian and democratic.

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One of our reasons for selecting Turkey as a comparative example is that it is a democratizing state with an authoritarian historical backdrop. Torture of detainees, extrajudicial killings and disappearances, violent public order policing, forced evacuations, the razing of whole villages, and the routine harassment of trade unionists, media workers, and human rights defenders form the human rights landscape in much of Turkey (see Amnesty International, 1998; European Commission, 1998; Human Rights Foundation of Turkey, 1997, 1998; Human Rights Watch, 1999). Torture is, however, in breach of Article 17 of the Constitution and Articles 243 and 245 of the penal code, and is punishable by up to five years of imprisonment. Proposals documented in the new draft penal code are set to increase the powers of the courts in punishing state officials found guilty of torture and ill treatment of detainees. In some celebrated cases, state officials have been charged with criminal conduct, but they are few and the crimes a re many. In 1999, six police officers were sentenced to five and one-half years each for torturing a suspect to death in 1993, but most other cases against state officials have resulted in very lenient sentences, fines, or acquittals.

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The violence of the Turkish state is of a different order of magnitude to that employed in most liberal democracies. Yet instances of violent crime by British and American state officials are not difficult to find -- recent revelations about the Los Angeles Police Department, and allegations of brutality against officers at the Wormwood Scrubs and Wandsworth prisons in England are among the more obvious examples. Less well-publicized is the extent to which legally unjustifiable violence is routinely used by police to enforce social discipline in some working-class areas (Choongh, 1997; Waddington, 1999).

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Despite the arguments of some theorists (e.g., Giddens, 1985) to the contrary, the use and threat of physical violence remain central to state power in liberal democracies. Cover\'s remarks on American criminal trials bring this out vividly:<o:p></o:p>

If convicted the defendant customarily walks -escorted--to prolonged confinement, usually without significant disturbance to the civil appearance of the event. It is, of course, grotesque to assume that the civil facade is voluntary." ...There are societies in which contrition and shame control defendants\' behaviour to a greater extent than does violence.... But I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk (Cover, 1986: 1, 607).

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The legal limits of legitimate force are inherently vague -- it is impossible to define in advance exactly what form of dragging or beating the prisoner may legitimately receive -- and strict enforcement of what limits do exist is intrinsically difficult and will often be contrary to the interests of the enforcing agency. It would therefore be surprising to discover any state in which criminal or legally ambiguous acts of violence by state agents did not occur. It would be equally astounding if any state were able to eliminate the innumerable opportunities for predatory crime inherent in economic regulation and revenue-raising (Smart, 1999). Some states, however, plainly commit far more and more serious crimes than others do, and it might be expected that these differences would be among the central concerns of criminology (Comfort, 1950). Yet the subject remains even more neglected than corporate crime. For example, the 1,267-page Oxford Handbook of Criminology devotes one sentence to the crimes of "the arm y, police, or government bureaucracies" (Nelken, 1997: 907)! [1]<o:p></o:p>

One reason for this neglect may be the difficulty of defining "state crime," given the obviously paradoxical results of adopting the state\'s own legal criteria. As Hannah Arendt (1965) pointed out, Adolf Eichmann was a model law-abiding citizen of the Third Reich, conscientiously arranging the extermination of Jews even in the face of "criminal" orders to the contrary. A state could eliminate state crime simply by giving its officials unlimited powers, or generate an alarmingly high "state crime rate" by holding its officials rigorously accountable to humane and strictly defined legal standards. The analytic value of using the concept of "crime" to designate morally abhorrent state practices may therefore appear questionable (Sharkansky, 1995). We wish to argue, however, that "crime" can be defined independently of the state by drawing on the concepts of human rights and deviance.<o:p></o:p>

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Human Rights

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In the literature on state crime, the main alternative to a legalistic definition is one that defines crime in terms of human rights. There are two very different human-rights-based definitions of state crime, reflecting the division within human rights scholarship between what Campbell (1999) calls the "torture paradigm" and the "health paradigm." The "torture paradigm," exemplified in criminology by Cohen (1993), "connects human rights with a shared perception of totally unacceptable evils which are never justified and undermine the claims to political legitimacy of any system of government" (Campbell, 1999: 18). This can be contrasted with the "health paradigm," exemplified within criminology by the Schwendingers (1975), which emphasizes "second generation" human rights to well-being (health, education, meaningful work, etc.), as well as to freedom and bodily integrity.

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In some contexts there may be good reasons to concentrate on "torture paradigm" rights for the purposes of research, while also recognizing the political importance of wider, "health paradigm" rights (Risse et al., 1999). In our view, however, Cohen\'s attempt to define a "core" of state crimes misses a crucial sociological issue. Cohen (1993: 102) confines his attention to activities that, although tragically commonplace in much of the world, are "anomalous" in "democratic-type societies," such as torture in Northern Ireland and the Israelioccupied territories. For us, the key point about state crime in liberal democracies is that it is not aberrant or anomalous, and has no clear boundaries, but shades imperceptibly into the routine, "legitimate" activities of the state. It is precisely this that makes Sykes and Matza\'s (1957) work on "techniques of neutralization," on which Cohen draws heavily, so relevant to both "routine" and "gross" state crime. Sykes and Matza\'s techniques of neutralization were based o n "what is essentially an unrecognized extension of defenses to crimes" (1996 [1957]: 209; emphasis in original). Similarly, routine state crime, or legally contestable state activity, is justified by standard criminal defenses such as "use of reasonable force in the prevention of crime," which may or may not be accepted as valid by the legal system or the social audience.

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This is nowhere clearer than in the case of Turkey, where the state paradoxically relies on decisions of the European Court of Human Rights to "normalize" its crimes. The concept of "emergency" implies an exceptional state of affairs, but in Turkey -- as in Northern Ireland, to which the Turkish state points as a precedent to justify its conduct -- "emergency" has become the norm (Gross and N[acute{i]] Aol[acute{a}]in, 1999), allowing the Turkish state to neutralize its crimes by using the language of human rights and extending recognized legal defenses (Green, 2000). [2] Although Cohen would no doubt recognize many of the Turkish state\'s activities as "core" crimes, it is also important to recognize the sociological continuities between such crimes and the less spectacular crimes of liberal democracies (Scraton, 1999).

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The Schwendingers\' use of the "health paradigm" of human rights raises its own problems, but it does not deserve to be dismissed, as it is by Cohen, as merely a left-wing "moral crusade." Their (1975) essay is an avowedly brief and tentative sketch for a conceptually and empirically rigorous program of research into violations of human rights. The fundamental principle underlying human rights, for the Schwendingers, is that "all human beings are to be provided the opportunity for the free development of their personalities" (as proclaimed in Article 22 of Universal Declaration of Human Rights). This entails that "all persons must be guaranteed the fundamental prerequisites for well-being, including food, shelter, clothing, medical services, challenging work and recreational experiences, as well as security from predatory individuals or repressive and imperialistic social elites" (Schwendingers, 1975: 133-134).

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The Schwendingers\' definition of human rights anticipates that of the moral and political philosopher Alan Gewirth (1978, 1982), although Gewirth employs a neo-Kantian philosophical framework, which the Schwendingers, as Marxists, reject. (See, however, Beyleveld and Brownsword, 1986: 452-456, for an attempt to reconcile Gewirth and Marx.) Like the Schwendingers, Gewirth argues that it is possible to identify essential prerequisites of human well-being, which are necessary preconditions for persons to exert and develop their capacities as purposive agents. Also like the Schwendingers, Gewirth recognizes ahierarchy of rights, with the most basic being those, in the Schwendingers\' words, that are "absolutely essential to the realization of a great number of values" (1975: 36).

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What Gewirth provides, however, is a definition not of crime, but of harm ("harm" and "violation of human rights" are interchangeable terms in Gewirth\'s work). The research program outlined by the Schwendingers (1975: 146), identifying indices such as "infant mortality, length of life, quality of food, diets, medical and recreational services, employment opportunities, etc.," is that of the fledgling discipline that Gordon et al. (1999) have proposed to call "zemiology" (from the Greek zemia, harm or damage) -- the study of social harms. It does not appear helpful to stretch the term "crime" to cover all social harms or even, as the Schwendingers more modestly suggested, all the more "basic" forms of social harm, such as preventable deaths, any more than it does to annex this vast field of study to the specialism of criminology.<o:p></o:p>

Deviance

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The core subject matter of criminology is behavior that not only is, or is perceived to be, socially harmful, but is also deviant. The term "deviance" is not easy to define precisely, but is commonly applied to three overlapping kinds of behavior: that which breaks institutionalized rules (which in the context of state action might more appropriately be termed "illegitimate" -- see below); that to which others apply pejorative and stigmatizing "labels" (criminal, sick, perverted, etc.), coupled with some kind of formal or informal sanctions; and that to which the actor perceives a risk that others would apply such rules, labels, or sanctions if they knew of it ("secret deviance").

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As critics of the sociology of deviance have complained, the term is usually reserved for relatively powerless people who are labeled and stigmatized by those more powerful than themselves (Liazos, 1972; Sumner, 1994). Thus, Waddington (1999: 179) insists that even the "transparently brutal" conduct of the South African Police under apartheid was not "deviant" because it was condoned by courts, politicians, and the white minority. However, deviancy labels and informal sanctions can also be applied "from below" to state action that is perceived as illegitimate: for example, when particular English police stations acquire a reputation among the black community for racism and brutality and sections of that community apply sanctions such as hostile demonstrations, the withdrawal of cooperation, or even riots (e.g., Keith, 1993: Chapter 2). In Turkey, those audiences "from below" include the Kurdish population in the southeast of Turkey; the "Saturday Mothers" who gather in Istanbul every week to protest the disa ppearance of their children, and other relatives and the human rights groups, trade unions, Bar Associations, journalists, and other media workers whose activities center on exposing state crime and corruption.

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The ability of such audiences to apply effective censure and sanctions to the state will clearly vary greatly according to the nature of the political system. One of the central elements of democratic society is the strength and health of the relationship between civil society and the state. The relationship between social groups or civil society and the political elite in Turkey has been characterized as generally weak (Powell, 1981: 866). The notion of institutionalized consultation between interest groups and political parties has, therefore, been effectively absent in Turkish politics. Interest groups thus have only a very limited role in the development of policy and "regulation from above" continues to dominate the process of policy-making (Heper, 1992: 186, Green, 2000).

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According to American political scientist Robert Putnam, whether a state is corrupt, inefficient, authoritarian, etc., depends largely on the extent and integration of civic associations in the society. In Turkey, with a population of some 62 million, only one million people are estimated to be involved in civic organizations. [3] Political institutions have thus been distorted by the generalized lack of public participation in the process of government. According to Putnam (1993: 120), "by far the most important factor in explaining good government is the degree to which social and political life in a region approximates the ideal of the civic community." [4] This may go some way toward explaining the relative lack of impact domestic audiences have had in defining Turkish state actions as criminal.

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The reactions of international audiences, on the other hand, have assumed great significance in the case of Turkey, especially in view of its desire to join the European Union (E.U.). The Council of Europe, the European Commission, and the European Court of Human Rights have indicated the limits of legitimate conduct to which Turkey must adhere to meet the membership requirements of the E.U. [5] In late 1997, the E.U. cited Turkey\'s dismal record on human rights as the central concern in the country\'s exclusion from its list of 11 prospective candidates for membership (Guardian, December 16, 1997). In October 1999, however, despite a recognition of continuing and widespread breaches of human rights, the E.U. noted "some encouraging signs of democratisation" [6] -- encouraging enough, apparently, to override its immediate human rights concerns. On December 10, 1999, the European Union invited Turkey to become a candidate for future membership, after 40 years of campaigning by the Turkish state. Admission will be dependent upon the Turkish state meeting a set of economic, political, social, and human rights criteria determined by the European Commission (1999: 15). According to Human Rights Watch, "if the E.U. holds Turkey to its commitments," membership discussions should provide a forum for genuine human rights reform. [7]<o:p></o:p>

As a consequence, issues of criminal justice policy and practice, particularly in relation to criminal activity conducted by the state, seem set to play a crucial transitional role in the "Europeanization" of Turkey. Thus, while the Turkish state is widely seen as "criminal," it is to some extent sensitive and responsive to the application of the deviant label. According to Seref Unal, Director General of International Law and Foreign Relations, Turkish Ministry of Justice,
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...Turkish Courts have to interpret the domestic law, regardless of its compatibility with the Convention, in the light of the jurisprudence of the European Court of Human rights. The Convention would only in this sense prevail over the laws and the Constitution. Having accepted the jurisdiction of the Court, it is also a contractual obligation.

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Certain minor improvements have been noted in Turkey\'s human rights practice (as it attempts to comply with E.U. human rights norms). In Risse et al. \'s "spiral model" of the socialization of human rights norm, Turkey is in the tactical concessions phase, where the validity of international human rights norms is acknowledged and certain minimal strategic concessions are made for largely instrumental purposes (Risse et al., 1999: 25-28). States in this phase:<o:p></o:p>

are subject to a normative process of shaming, and relegation to an out group, which they often resent and sometimes feel is sufficiently disturbing for either their international image or their domestic legitimacy that they are willing to make human rights concessions (Ibid.: 27).<o:p></o:p>

The "spiral model" suggests that once such concessions are made, continuing normative pressures may lead to human rights norms being internalized in a country\'s political culture. Although the extent to which this has occurred in Turkey is clearly debatable, it does appear that in the process of compliance (for whatever ultimate ends), human rights have become part of the domestic and international political discourse for the Turkish government.

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Moving from the Turkish to the American context, one recent study that recognizes the significance of domestic and international audiences in defining state conduct as deviant is Kauzlarich and Kramer\'s Crimes of the American Nuclear State (1998). The authors seek to demonstrate that governmental conduct, such as threatening to use nuclear weapons, nuclear contamination of the environment, and experimental exposure of human beings to radiation, can be

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explained by an extension to an organizational rather than individual level of conventional criminological theories of motivation, opportunity, and social control. Under the heading of social control they include not only legal sanctions, but also the reactions of international audiences, social movements, and the media. For example, they argue that the potential reaction of international audiences blocked the use of nuclear weapons in Korea, and the domestic antiwar movement blocked their use in Vietnam. On the other hand, although the contamination of the env ironment and the irradiation of human subjects by the nuclear weapons industry, "if discovered by a social group outside the complex, would [have been] considered not only criminal but probably unconscionable" (p. 159), the secrecy surrounding the industry fostered the development of an organizational culture more concerned with goals than with means.

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Unfortunately, although Kauzlarich and Kramer recognize the importance of informal sanctions in the explanation of state crime, their definition of state crime is based on a highly legalistic use of international law. For example, they claim that because the International Court of Justice issued an advisory opinion in 1996 to the effect that the threatened use of nuclear weapons is illegal, the threats of such action that the U.S. appears to have made against China and North Korea in 1953 constituted "a form of state crime -- nuclear extortion -- that is open to criminological analysis" (p. 39). Of what possible relevance is the ICJ\'s legal opinion to the explanation of events that occurred 43 years earlier? The opinion in question turns out to have no bearing on Kauzlarich and Kramer\'s account of those events, and that account has only a tenuous connection with the specifically criminological analyses to be found elsewhere in their book. This suggests to us that the threats in question, while no doubt const ituting grave violations of human rights, were not the type of violations that can be usefully classed, for explanatory purposes, as crimes.

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Similarly, in the present state of international politics, the innumerable acts and omissions that could be considered to violate the International Covenant of Social, Economic, and Cultural Rights - which includes most of the "health paradigm" rights enumerated by the Schwendingers -- can hardly be classed as deviant. There can be few, if any, states that are taking steps "to the maximum of [their] available resources" to achieve "the full realization" of, for example, the right to work, as the Covenant (Article 2) requires. Yet such noncompliance generally runs a negligible risk of being effectively censured as deviant -- probably much less risk than a serious attempt to comply, which would no doubt be considered the height of economic irresponsibility. As Henkin remarks:<o:p></o:p>

In all, it is difficult to avoid the impression that there has been little disposition in the international system to take the Covenant on Economic and Social Rights seriously as creating international obligations for states parties, and therefore little disposition to monitor compliance with the Covenant, as by scrutinizing a state\'s expenditure for other purposes of resources that ought to be available for meeting basic economic and social needs of its inhabitants. Nongovernmental organizations, too, have not undertaken such monitoring (Henkin, 1995: 224).<o:p></o:p>