CRIMES OF THE STATE

 
WDW 391 (Topics in Criminology) -- Woodsworth College, University of Toronto, Winter 2000
Instructor: Stéphane Leman-Langlois
 
This course explores issues related to state criminality in all its forms, from now conventional war crimes and crimes against humanity to torture and organized mass rape. Main topics will include making and enforcing international laws, questions of responsibility and accountability, the impact of political systems and bureaucratic organization on state criminality, and ideology, obedience and culture as factors in the state's level of respect for human rights. Needless to say, some of this will be highly controversial in nature.

THEMES AND FORMAT
In essence the course reverses the microscope and looks at those who are traditionally held to be responsible for preserving peace and order as agents of the state. A distinction must be made right away: the focus here is on those who use abusive power given by the state, and much less on those who abuse their powers and go beyond state policy. What makes all the difference, here, is that the former engage in what can be conceived as authorized crime, where the acts judged to be wrongful are a required part of their functions.

We will follow a few cases, some from history, from World War II to Cambodia, as well as some from contemporary events in China, Bosnia, Rwanda and show parallels and contrasts. We will also look at different efforts made to address massive crimes with massive justice: from the Nuremberg and Frankfurt trials to the South African Truth and Reconciliation Commission and the UN plans for an international criminal tribunal.

This course will treat human rights legislation as equally problematic as the situations it is meant to address. We will approach the entire question of state crime as a product of various elements, including these laws.

Classes will be divided in two, the first half consisting of a lecture, the second of a class discussion on actual events and the links that can be made to the theory.
 
COURSE SCHEDULE AND READINGS
 
1. INTRODUCTION (6 January)

This first class will deal with the ground rules for the course, the format of exchange and discussion and the evaluation of students. A brief summary of the course and the major cases that will be presented.
The second half will tackle two basic concepts to the course: what is meant by "crime" and by "state." Obviously, the goal will in no way be to somehow exhaust or settle these eternal questions, but rather to determine a certain basis for discussion of the topics to follow, to create a common language in the group.
Finally, the reading list for the next class will be briefly introduced and questions will be submitted for the following discussion (presented with the list in next section).

Discussion: a) possible elements of the concept of "crime:" (1) it violates a known (e.g. written) rule; (2) it violates a right of individuals or groups; (3) it is punishable; (4) it threatens the peace; (5) it clashes with ethics/values; etc.
b) Is "crime" a noun or an adjective?
c) What is more important in a state: (1) geographical existence/boundaries; (2) cultural/ethnic differentiation; (3) political/intellectual identification; (4) other.

 

2. STATE ADMINISTRATION AND BUREAUCRACY (13 January)

Now we concentrate on the practical organization of the state and find out if the idea of legality and especially extra-national law is compatible with it. We will present different forms of government and their potential for state crime. Centralisation of power can also be an important factor. Another very important element is the bureaucratic organisation of modern states, as it produces its own set of rules and regulations, and also requires compliance.

Discussion: a) Why does Crozier say that power is not a "commodity" or a personal characteristic?
b) According to Breton and Wintrobe, what is the difference between totalitarian and authoritarian states?
c) is democracy a guarantor of government conformity to law?

Readings:
Breton, Albert and Ronald Wintrobe, (1986) "The Bureaucracy of Murder Revisited," in: Journal of Political Economy, Vol 94, no 5, 905-26.
Crozier, Michel and Erhard Friedberg, (1977) Actors and Systems: the Politics of Collective Action, Chicago, University of Chicago Press, 1980, 1-13.

 

3. OBEDIENCE 1: PARTICIPATION (20 January)

Any given form of government calls for a minimum of obedience from the citizens it purports to represent, this at two levels: (1) every individual has to accept a certain number of responsibilities as a citizen; (2) each citizen is expected, at least, to respect the law (civil and penal). As we have seen, the authority of the state comes from various sources: sanction of the Church, personality of the leader, security from outside threats, protection against common criminality, preservation of a way of life, promotion of moral values, etc. This begs the question of the limits of reasonable obedience for citizens in general, but especially for members of the governmental bureaucracy. Samuel and Pearl Oliner have published a book of stories of ordinary Germans who helped hide and evacuate Jews during the Holocaust. Were they heroes? Is this what is expected of all ordinary people? In this case, most, obviously, fail the test. But can one be punished for not having been a hero, not having risked her/his life for complete strangers?

Discussion: a) A soldier is not guilty of a crime when the order he followed was not "manifestly illegal". What does this mean?
b) According to Kelman, what are the conditions for personal responsibility in crimes of obedience?

Readings:
Browning, Christopher, (1992) Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, New-York, HarperCollins, 114-32.
Kelman, Herbert and Lee Hamilton, (1989) Crimes of Obedience: Towards a Social Psychology of Authority and Responsibility, New Haven, Yale U. Press, 103-135.

 

4. OBEDIENCE 2: RATIONALIZATION AND DENIAL (27 January)

This last look at the problem of obedience will be directed at state propaganda and its effectiveness. If possible, the documentary film""Manufacturing Consent," (Marc Achbar and Peter Wintonick, Montréal, National Film Board of Canada, 1992) based on the Edward Herman and Noam Chomsky book, will be shown.
The concept of "authorized crime" will be introduced: they are acts showing a special set of elements such as: number of instances, number of perpetrators, organisation of the perpetrators, duration of the abuse, distance (chronological as much as ideological/political) between the events and the present system, etc. It is purposefully vague because that is the nature of the category. Both "authorization" and "crime" are constructed elements; authorization may be simply perceived, as is often the case for instance when many others are also committing the crime. The criminal nature of the act is also dependent on the salience of the discontinuity in discourse between the old system of (apparent) authorization and the new one.

Discussion: a) Given the media's role in broadcasting government propaganda, what does it mean to be a "competent" journalist?
b) What is the role of "spoon-fed" information in people's perspective of their world?
c) Do you agree with Buchheim that "the SS' consciousness of wrongdoing was in partial suspense" (p. 163)?
d) Does conviction eliminate responsibility?


Readings:
Cohen, Stanley, (1993) "Human Rights and Crimes of the State: The Culture of Denial," in: Australia and New Zealand Journal of Criminology, July 1993 (26), 97-115.
Rosenberg, Tina, (1991) The Children of Cain, New-York, Penguin Books, 1992, 118-141.

 

5. HUMAN RIGHTS (3 February)

We will explore in this section the many ways that the conventional three estates — the legislative, the executive and the judicial, and again, it must be underlined that we mean here the individuals connected to each, not the estates "in themselves" — can all be part to criminal acts or plans. Weber used to say that the state had a monopoly on legitimate violence, through its police and armed forces. According to Weber, legitimacy of the state's authority can come in any of three forms: emotional surrender, rational belief in the necessity of authority, or religious conviction. More often than not, one finds a combination of all three in any given polity. Whether one likes Weber's explanation or not, it is a very good starting point for a discussion on the legitimacy of state action. We must remember that for a long time the state could do no wrong. It is only in the last 50 or 60 years that international norms have been devised to limit the state's sovereign power over its citizens and even today the enforcement of these norms is only starting to be taken seriously.

Discussion: a) Is international law a standard for national law and policy in fact or simply in principle?
b) in view of (1) its harbouring of known war criminals; (2) commercial exchanges with documented human rights offenders; (3) its continuing support to repressive and illegitimate governments (e.g. Indonesia), is Canada to a certain extent a "criminal state?"
c) Why do you think it was so difficult to establish an International criminal tribunal at the Hague?
d) It is often underlined that the existence customary law is dependant on its application. What does that mean (one obvious answer, one less so)?
e) What should the difference between war crimes and crimes against humanity be?

Reading:
Meron, Theodor,
(1989) Human Rights and Humanitarian Norms as Customary Law, Oxford, Clarendon Press, 136-171.

 

6. THE STATE AND INTERNATIONAL LAW (10 February)

This class expands on the topics visited in the previous one, but with strong focus on international intervention, the "policing of states." We will establish a difference between policing states, i.e. providing legal ways to challenge internal statutes and policies as well as creating the structures necessary to push for their modification, abandonment, or the enactement of internationally acceptable laws, and policing individual members of the state, usually through deterrence and criminal law.

Reading:
International Meeting of Experts on the Establishment of an International Criminal Tribunal, (1993) Vancouver (BC), The International Centre for Criminal Law Reform and Criminal Justice Policy.

 

7. IDEOLOGY (24 February; 17 Feb. is in reading week)

The most useful definition of ideology is "knowledge or science used towards political ends." Here we will therefore have an opportunity to have a look at criminology itself and the many ways it becomes ideology — when it doesn't simply start that way. But the main point is that today science is the easiest and most potent justification for social/political action; and criminal action usually needs the most powerful rationalisations. We have already seen how important symbols are in determining the interpretation of situations and the form of their solutions. Policy is directly linked to the processes used to define the problems it is supposed to address. But why do people believe in such obviously "false" knowledge? In large part, as Tormey puts it, ideology is "tantamount to the belief in the power of mankind to solve the riddle of history [...] in our ability to comprehend scientifically the process that makes us who we are" (p. 40).

Discussion: a) is there a difference of conceptual process between cutting aid to the poor on the pretext of mounting debt (Canada) and forbidding intermarriage on the basis that Blacks and Whites were meant by God to be separated (old South Africa)?
b) Is there any form of weapon against ideological propaganda? What about the conventional, "the best defence against hate speech is more speech?"
c) How does this fit in the traditional left-right, progressive vs conservative dichotomy?

Readings:
Kren, George, and Leon Rappoport, (1980) The Holocaust and the Crisis of Human Behaviour, New-York, Holmes & Meyer, 125-160.
Thompson, Leonard, (1985) The Political Mythology of Apartheid, New Haven (CT), Yale University Press, 1-24.

 

8. THE TOTALITARIAN STATE (2 March)

In this section, we will study four cases of totalitarian states: Stalin's USSR, Hitler's Third Reich, Tito's Yugoslavia and Castro's Cuba. We are trying to figure out whether totalitarianism invariably leads to "criminal" behaviour. Is it possible to have a benign ruler, a bureaucracy that respects the rule of law, etc. in an authoritarian or totalitarian context? To most accounts, Hitler and Stalin's governments were examples of the worst possible organization and rule of any state. On the other hand, Yugoslavia and Cuba are often seen as having been relatively open societies. Criteria for such judgment is hard to decide on; numbers of political prisoners, their treatment, etc. are tabulated by agencies like Amnesty International and considered as good indicators. However, it tends to ignore differences like the level of education: obviously, uneducated people tend to be more compliant with state doctrine. On the other hand, one must look at the nature of the education offered: is it pure indoctrination?

Discussion: a) When Tormey speaks of totalitarian states being the "mirror image" of democratic ones, does he have in mind ideal forms of totalitarianism and democracy? If so, is this explanation still interesting in the very messy concrete world?
b) Is any totalitarian-type state inherently criminal?

Readings:
Arendt, Hannah, (1951) The Origins of Totalitarianism, New-York, Harcourt, Brace, 364-88.
Israël, District Court of Jerusalem, (1961) Criminal Case No. 40/61. The Attorney General of the Government of Israel v. Adolf, the Son of Adolf Karl Eichmann, Jerusalem, Trust for the Publication of the Proceedings of the Eichmann Trial, in Cooperation With the Israel State Archives and Yad Vashem, the Holocaust Martyrs' and Heroes' Remembrance Authority, 1625-34, 1637-38, 1646-49.
Tormey, Simon,
(1995) Making Sense of Tyranny: Interpretations of Totalitarianism, Manchester, Manchester University Press, 167-90.

 

9. WAR 1: INTERNATIONAL CONFLICT (9 March)

One of the most important justifying myths is danger to the nation. Most war criminals invoke the dangerousness of their victims, the threat they presented to the fatherland or the nation or the purity of the race. GIs in Vietnam used to justify killing housewives and children (directly but more often "indirectly," as "collateral losses") by telling stories of young girls throwing grenades into cafes frequented by US soldiers (factually, such events were a rarity). In Bosnia, the Serbian leadership portrayed "ethnic cleansing" as "combat," the protection of ethnic Serbs and what was presented as Serb land.
Here we need to recall the difference between the now accepted categories of war crimes and crimes against humanity: while outright war or at least some kind of armed conflict (definitions can always be reinterpreted by the parties) is necessary for war crimes accusations to be laid, it is not in the case of crimes against humanity. While the Nuremberg Principles state that crimes against humanity need to be connected to war crimes or crimes against peace — for political reasons, as we have seen — they need not in their nature be directly linked to war. Turkey used the cover of the First World War to exterminate over two million Armenians who had become a political liability, but certainly not an armed faction.

Discussion: a) Is there such a thing as a "just" war, in the criminological, legal, political sense?
b) Are war crimes inherent to war?

Readings:
Goldstein, Joseph, Burke Marshall and Jack Schwartz, (1976) The My Lai Massacre and Its Cover-Up: Beyond the Reach of the Law? New-York, Free Press, 127-46, 209-29.
Kolko, Gabriel, (1971) "War Crimes and the Nature of the Vietnam War", in: Falk et al (eds.), Crimes of War: a Legal, Political, Documentary and Psychological Inquiry into the Responsibility of Leaders, Citizens and Soldiers for Criminal Acts in Wars, New-York, Random House, pp. 403-15.

 

10. WAR 2: CIVIL WAR (16 March)

Civil war and terrorism are in the greyest area of this section; at the same time, they seem to be the circumstances where the worst atrocities are committed, from the US Civil War on. Were does legitimate (and does such a thing exist) armed response to oppression begin, were does common brutality and thievery end? How far should a legitimate state go in fighting an uprising? What is the winning side to do with the other?
We will look specifically at four cases: (1) the FSLN (Sandinist National Liberation Front) and the "Contras" in Nicaragua; (2) the fall of the Smith regime in Rhodesia (now Zimbabwe); (3) the war in the former Yugoslavia and 4) the Rwandan genocide.

Discussion: a) Did Ian Smith wait too long before negotiating with the insurgent groups?
b) Between the "Contras" and the FMLN, is one group more "legitimate?"
c) For Cigar, lifting the arms embargo on Bosnia would have stopped the war by shifting the balance of power. What do you think?

Readings:
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, (1992) Geneva, United Nations Official Documents.
Des Forges, Alison, (1999) "Documenting Horror: The Administration of the Rwandan Genocide," in (Belinda Cooper, ed.): War Crimes: The Legacy of Nuremberg, New-York, TV Books, 139-53.

 

11. CONSEQUENCES 1: PUNISHMENT (23 March)

At last we reach our destination. Section by section, we have seen that 1) the state is not a simple policy-following machine; 2) it is constituted of individuals who pursue subjectively produced goals; 3) international law follows a morality of rights and aims at universal validity but is far from universal in its application; 4) that bureaucracy is a common denominator of the modern state, and as a tool, is morally neutral; 5) that coercion is more complex than simple orders, and at the same time orders are not necessarily coercive in the obvious and traditional usage of the term; 6) that victims are usually constituted as autonomous individuals who have had their rights violated; 7) the political organisation of the state is not sufficient either a. to explain violations or b. to guarantee that they not happen; 8) that any crime and any action against it take place in the wider context of a socially created reality; 9) that any state action finds justification in a specific worldview and is articulated around simplified narratives (myths or symbols) about reality; 10) that war blurs any line between criminal action and conflict with contradictory concepts of attacker, defender, victim, etc.; 11) that civil wars differ mainly in the fact that everyone's fate is more closely linked to everyone else's.
It is now time to have a look at historical ways of dealing with crimes, starting with traditional trials in a punishment model.

Discussion: a) How is Yamashita an exceptional case, and should it be?
b) What is the difference between "acts of state" and "superior orders?"
c) Was Lt Calley a "scapegoat?"
d) Where do the considerations in the last section leave us in regards to the international war crimes tribunal in the Hague?


Readings:
Brownlee, Ian, (1989) "Superior Orders: Time for a New Realism?", in: The Criminal Law Review, 89, 06, 396-411.
Falk, Richard, (1971) "The Circle of Responsibility," in: Falk et al (eds.), Crimes of War: a Legal, Political, Documentary and Psychological Inquiry into the Responsibility of Leaders, Citizens and Soldiers for Criminal Acts in Wars, New-York, Random House, 222-32.
McCarthy, Mary, (1972) Medina, New-York, Harcourt, Brace, Jovanovich, 30-39, 74-87.

 

12. CONSEQUENCES 2: OTHER SOLUTIONS (30 March)

History shows that massive internal trials are a rarity; trials are more likely to result from outside action or at least influence; otherwise, conventional prosecutions often appear as damage control, the condemnation of a few scapegoats designed to give the impression that crimes and other difficult moral issues have been dealt with by the administration, and all that is left is a "clean" war. There are, however, exceptions and the Somalia Inquiry in Canada appears to be one: very limited crimes giving rise to a number of trials and an official inquiry into not only the conduct of operations abroad but the entire military reaction towards wrongdoing by its troops. By contrast, the multiple investigations set up in the US to examine the strategies in Vietnam were essentially concerned with finding abuses of the set policy. Very little had to do with the legitimacy of the policies themselves. The only serious questions about official strategy were risen when infantrymen fell sick after having been repeatedly showered with Agent Orange in the field — and very little was said, even then, about the use of defoliants being against the Geneva Conventions in the first place, no matter who's head it falls on.

Discussion: a) Punish, or "forgive and forget?"
b) How far does or should criminal accountability extend, in terms of time (how long ago) and hierarchy (how far up/down)?
c) Is the international community justified in investigating and bringing to justice criminals from any country, or should national communities be left to deal with their problems?

Readings:
Barahona de Brito, Alexandra, (1993) "Truth and Justice in the Consolidation of Democracy in Chile and Uruguay," in: Parliamentary Affairs, 46, 4, 579-93.
Brodeur, Jean-Paul, (1997) Violence and Racial Prejudice in the Context of Peacekeeping, Ottawa, Minister of Public Works and Government Services Canada.
Los, Maria, (1995) "Lustration and Truth Claims: Unfinished Revolutions in Central Europe," in: Law and Social Inquiry, 20, 1, 117-62.

 

13. THE SOUTH AFRICAN TRUTH AND RECONCILIATION COMMISSION AND THE INTERNATIONAL CRIMINAL TRIBUNAL (6 April)

"Why is it necessary to lift this veil from our past? Why not simply erase the page and start all over again? The Truth and Reconciliation Commission is enjoined by the Promotion of National Unity and Reconciliation Act to ensure the restoration of dignity to people who have suffered pain and loss through atrocities of the past. In addition, it has also inherited the role of promoting reconciliation. The Truth and Reconciliation Commission has heard painful individual histories. At this level, the Commission has succeeded as an opportunity for families of victims and survivors to turn years of silence into visible expression. In some notable cases, the Commission effectively discharged its important task of investigating the facts about the torture and death of many people, and this enabled individuals and families the consolation of knowing what happened [...].
The Commission has been vociferously attacked from a variety of quarters — ranging from those who criticise the Commission for being a "Kleenex" Commission and a witch-hunt, to those who feel disillusioned by a process that promises amnesty to perpetrators of atrocities. These attacks are at once partially true and patently unfair. Some people do not understand how history can be told in such an emotionally charged context. Our history is a traumatic one, and therefore needs that we engage not only our intellect but our empathy as well."
Pumla Gobodo-Madikizela, Human Rights Violations Committee, TRC, December 1996 (emphasis is mine)

This course will explore the construction of an alternative language of justice in post-transition societies, taking the SATRC as main example.

Discussion: a) Is too much hope placed in the TRC's capacity to produce reconciliation?
b) Is the "healing of the nations" dictated by economic and political necessities, or is there an ethical logic behind it? Is t a compromise between the two?

Reading:
South African Truth and Reconciliation Commission, (1998) Report of the Truth and Reconciliation Commission, on-line version, Vol. 1, Ch. 5.

 

EXAMS, ASSIGNMENTS

Late penalty for all papers is 10% per day

i. Midterm paper, 20%. Review of Kelman and Hamilton (1989) in light of other required readings (8 pages). Due on 10 February.

ii. Outline of term paper on individual subject, 10% (2 pages). Due on 9 March.

iii. Term paper, 40% (12 pages). Due on last class, 6 April.

iv. Final exam, 30%. To be scheduled during exam period.