Human Rights
Human Rights
Human Rights
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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 criminol?
ogy 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 Turk?
ish. 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.
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 Consti?
tution 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 are 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.
Penny J. Green is Professor of Law and Criminology at the School of Law, University of Westminster
(4 Little Titchfield Street, London, W1P 7FW England; e-mail: [email protected]). Her
current research interests include Britain and the arms trade, drug trafficking, state crime, and human
rights and criminal justice in Turkey. Her published works include The Enemy Without: Policing and
Class Consciousness in the 1984-85 Miners' Strike (1990), Drug Couriers: An International
Perspective (1996), and Drugs Trafficking and Criminal Policy: The Scapegoat Strategy (1997). She
is currently working with Tony Ward on an edited volume entitled State Crime and the Limits of
Criminology. Tony Ward is a Senior Lecturer in the School of Law, De Montfort University, The
Gateway, Leichester, LEI 9BH England. He formerly worked for INQUEST, which campaigns about
deaths in custody in England and Wales.
"crime" to designate morally abhorrent state practices may therefore appear question?
able (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.
Human Rights
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).
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).
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 a hierarchy 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).
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), identi?
fying 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.
Deviance
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").
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
disappearance 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.
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).
According to American political scientist Robert Putnam, whether a state is
corrupt, inefficient, authoritarian, etc., depends largely on the extent and integra?
tion 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 organiza?
tions.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.
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.
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 environ?
ment, and experimental exposure of human beings to radiation, can be 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
environment 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.
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 constituting grave violations of human
rights, were not the type of violations that can be usefully classed, for explanatory
purposes, as crimes.
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"
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).
Legitimacy
The concept of legitimacy provides the link between state deviance and human
rights. As Habermas (1976) argues, human rights and popular sovereignty, or
variations on those themes, have been central to the legitimation of modern secular
states.
In any situation where the state's claim to legitimacy is accorded some degree
of consent ? and exactly what this "consent" amounts to may be a very difficult
question?there is likely to be some tacit understanding of the limits of legitimate
conduct (which may be more or less closely related to legal norms), departure from
which will attract some kind of censure or sanctions. (See, for example, Sparks et
al., 1996, on prisons.) As the political scientist David Beetham (1991) argues,
"disputes over political legitimacy are not simply about legal entitlement ? they
also embody disputes about whether the law is justifiable or whether it conforms
to moral or political principles that are rationally defensible." Having rejected
purely legalistic definitions of state crime, the concept of legitimacy becomes
particularly important for our argument. Rejecting, also, Weber's analysis of
legitimacy as primarily a matter of belief, we argue (with Grafstein, 1981, and
Beetham, 1991) that political legitimacy is the product of the congruence or lack
of congruence "between a given system of power and the beliefs, values, and
expectations which provide its justification" (Beetham, 1991: 11). Beetham
identifies three interweaving factors that combine to confer legitimacy ? legality
(i.e., the legal validity of the acquisition and exercise of power), justifiability in
terms of shared beliefs, and actions expressive of consent (Ibid.: 12-13). Legiti?
macy can only be "guaranteed" when the ideological framework employed to
Our proposal is, then, that the term "state crime" (as applied to contemporary
states) should be restricted to the area of overlap between two distinct phenomena:
(1) violations of human rights and (2) state organizational deviance. We define
human rights, following Gewirth and the Schwendingers, as the elements of
freedom and well-being that human beings need to exert and develop their
capacities for purposive action. The exact scope of such rights (or needs) is
debatable, but it is a debate to which social scientists can and should contribute.
State organizational deviance is conduct by persons working for state agencies, in
pursuit of organizational goals, that if it were to become known to some social
audience would expose the individuals or agencies concerned to a sufficiently
serious risk of formal or informal censure and sanctions to affect their conduct
significantly (for example, by inducing them to conceal or lie about their
activities). Such censure or sanctions may originate "from above" (formal legal or
disciplinary sanctions), "from below" (delegitimation, i.e., conduct manifesting a
withdrawal or erosion of consent, see Beetham, 1991), "from within" (informal
norms of the organizational culture), or "from without" (international pressures).
Our definition reserves the label "crime" for behavior that is both "objectively"
illegitimate (albeit according to an intensely value-laden criterion) and "subjec?
tively" deviant. We do not consider it morally or semantically appropriate to apply
the word "crime" either to deviations from other value systems (for example,
Islam, free trade, or socialism) to which particular states claim to subscribe, or to
practices that the critical social scientist may justifiably perceive to be illegitimate,
but which are generally accepted as part of the routine, legitimate activity of the
state (or at least as within the fair range of party-political disagreement). The
obvious example of the latter is the maintenance of a capitalist economy. The
contradiction between the gross inequities in the distribution of wealth and power
under capitalism, and ideologies of human rights and democracy call into question
the legitimacy of any capitalist state, but by no stretch of the term is this
contradiction an example of organizational deviance. It is debasing the currency
of criminology to label failures to pursue radical egalitarian policies as "crimes"
Conclusion
NOTES
1. There is also a brief discussion on state complicity in organized crime in Hobbs' chapter
(1997: 829-830).
2. This example illustrates why the pliable language of international conventions on human
rights does not provide a criminologically adequate definition of state crime.
3. Douglas Johnson speaking at the "Human Rights in Turkey: The Way Forward" conference
? organized by Amnesty International and the Istanbul Bar Association (November 20,1998).
4. Putnam (1993: 83) defines civic community as "patterns of civic involvement and social
solidarity."
5. In 1993, the European Union established the "Copenhagen Criteria," i.e., that candidate
countries establish stable institutions that guarantee democracy, the rule of law, human rights, and
respect for and the protection of minorities, as a basic requirement of membership.
6. European Union Commission Regular Report from the Commission on Progress Towards
Accession: Turkey ? October 13, 1999. See http://europe.eu.int/comm/enlargement/turkey.
7. Human Rights Watch, "E.U. Membership Process Could Bring Human Rights Reform in
Turkey." See http: //www.hrw.org/campaigns/turkey.
8. The culprits were acquitted of assault but later convicted of violating King's civil rights, yet
it could hardly be argued that the acquittal was legitimate in Beetham's sense.
9. The catastrophic consequences of the Turkish earthquakes in August and November 1999
may very usefully be analyzed from within the framework of our definition.
REFERENCES
Amnesty International
1998 Annual Report. London.
Arendt, H.
1965 Eichmann in Jerusalem (Revised edition). Harmondsworth: Penguin.
Becker, H.
1963 Outsiders. New York: Free Press.
Beetham, D.
1991 The Legitimation of Power. Basingstoke: Macmillan.
Beyleveld, D. and R. Brownsword
1986 Law as a Moral Judgment. London: Sweet and Maxwell.
Booth, K.
1999 "Three Tyrannies." T. Dunne and N.J. Wheeler (eds.), Human Rights in
Global Politics. Cambridge: Cambridge University Press: 31-70.
Campbell, T.
1999 "Human Rights: A Culture of Controversy." Journal of Law and Society 26:
6-26.
Choongh, S.
1997 Policing as Social Discipline. Oxford: Clarendon Press.
Cohen, S.
1993 "Human Rights and Crimes of the State: The Culture of Denial." Australian
and New Zealand Journal of Criminology 26: 97-115.
Comfort, A.
1950 Authority and Delinquency in the Modern State. London: Routledge and
Kegan Paul.
Cover, R.
1986 "Violence and the Word." Yale Law Journal 95: 1601.
Donnelly, J.
1999 "The Social Construction of International Human Rights." T. Dunne and N.J.
Wheeler (eds.), Human Rights in Global Politics. Cambridge: Cambridge
University Press: 71-102.
European Commission
1998 Regular Report from the Commission on Turkey's Progress Towards
Accession. November.
Friedrichs, D.O.
1995 "State Crime or Governmental Crime: Making Sense of the Conceptual
Confusion." J.I. Ross (ed.), Controlling State Crime: An Introduction. New
York: Garland.
Gewirth, A.
1982 Human Rights: Essays on Justification and Applications. Chicago: University
of Chicago Press.
1978 Reason and Morality. Chicago: University of Chicago Press.
Giddens, A.
1985 A Contemporary Critique of Historical Materialism. Volume 2: The Nation
State and Violence. Cambridge: Polity.
Gordon, D., P. Hillyard, and C. Pantazis
1999 "Introduction to Zemia and Zemiology." Paper presented at the "Zemiology:
Beyond Criminology" conference, Dartington, England (February).
Grafstein, R.
1981 "The Failure of Weber's Concept of Legitimacy." Journal of Politics 43: 456
472.
Green, P.
2000 "Criminal Justice and Democratization in Turkey: The Paradox of Transition."
P. Green and T. Rutherford (eds.), Criminal Policy in Transition: Into the New
Millennium. Oxford: Hart Publishing. Forthcoming.
Gross, O. and F. Nf Aol?in
1999 "To Know Where We Are Going, We Need to Know Where We Are:
Revisiting States of Emergency." A. Hegarty and S. Leonard (eds.), Human
Rights: An Agenda for the 21st Century. London: Cavendish.
Sherman, L.
1978 Scandal and Reform: Controlling Police Corruption. Berkeley: University of
California Press.
Smart, A.
1999 "Predatory Rule and Illegal Economic Practices." J. McHeyman (ed.), States
and Illegal Practices. Oxford: Berg.
Sparks, R., A.E. Bottoms, and W. Hay
1996 Prisons and the Problem of Order. Oxford: Clarendon.
Sumner, C.
1994 The Sociology of Deviance: An Obituary. Buckingham: Open University
Press.
Sykes, G. and D. Matza
1957 "Techniques of Neutralization: A Theory of Delinquency." American
Sociological Review 22: 664-670. Reprinted in J. Muncie, E. McLaughlin, and
M. Langan (eds., 1996), Criminological Perspectives: A Reader. London:
Sage.
Unal, S.
1999 SAM PAPERS: 3/99. Turkish Legal System and the Protection of Human
Rights. Ankara: Ministry of Foreign Affairs Center for Strategic Research.
Waddington, P.A.J.
1999 Policing Citizens. London: UCL Press.