Home Law Defining Crime: A Critique of the Concept and Its Implication
States and Citizens as Victims
Previously, we have examined aspects of state crime where the state is the offender. States may also be victims of state crimes. Orthodox criminology omits the victims of state crime by adhering to the criminal-law definition of crime that, because it does not recognize the state as offender, cannot recognize the state as victim—that is to say, if the criminal law fails to recognize state offenders, then it follows that orthodox criminology rarely acknowledges the existence of states as victims of crimes. Once more, we have the exclusion of certain crimes and victims because no such crimes exist due to the lack of criminal laws.
Despite criminology’s approach to state crime and its tendency to reject the study of state crimes, victims of state crimes nevertheless exist. For orthodox criminologists, they should exist when states violate international criminal laws that define state crimes relative to a concept of crime that orthodox criminology accepts—a behavior that violates the criminal law. One might think that criminologists would have given significant attention to these serious harms for at least the past 65 years, when attention was called to state crimes following the conclusion of World War II. In 1948, for example, the United Nations defined the act of genocide in the Convention on the Prevention of and Punishment of the Crime of Genocide. Crimes against humanity were first codified in the Charter of the International Military Tribunal in 1945 following World War II, which set out the criminal trial process to be employed in prosecuting war time criminals at the Nuremberg trials. Despite the significance of these two examples, international laws related to defining war crimes were first recognized in the Hague Conventions of 1899 and 1907. More recently, in 2010, the Rome Statutes of the ICC were revised to include crimes of aggression between states. These crimes and the victims of these crimes rarely appear in the orthodox criminological literature despite the fact that they are defined as crimes under the law.
As noted earlier, the kinds of state crimes described here are relatively few in number—that is, states are not routinely invading other nations to such a degree that one can count thousands of these acts within a short period of time. Despite their relative infrequency, at least in terms of official recognition by international laws bodies, courts, and tribunals, these kinds of state crimes can produce extensive victimization. War crimes related to the war in Darfur (2003-present) between rebels groups and the Sudanese government has resulted in several hundred-thousand causalities. Some of these crimes included forced military service, ethnic cleaning and genocides, the use of child solders, torture, murder, rape, and mutilations. The Sudan government has used ethnic cleansing as one of its responses to this rebellion, and in response, millions of residents have crossed national borders in an effort to flee to refugee camps.
Victims of war and refugees are two examples of the victims of state crimes. The victims of state crimes come in other forms as well. Some are children who become victims of state crimes in ways we may not ordinarily perceive. For example, the United Nations estimates that there are 300,000 children serving as soldiers worldwide. In his book Death by Government, Rummel (1997) attempted to estimate the number of deaths attributable to governments (demo- cides) from activities such as genocides and the bombing of civilian populations and includes estimates due to government massacres, government created famines, deaths from forced labor, and prison camps, among others. Rummel suggests that in the twentieth century, Nazi Germany, Soviet Russia, and China each committed more than ten million democides. Overall, the figures are approximately 262 million deaths in the twentieth century. This is nearly six times the number of deaths due to war (Rummel 1997) and pales in comparison to behaviors such as homicide that normally concern criminologists.
The United Nations High Commissioner for Refugees (UNHCR) keeps track of forced displacements caused by war and other relevant state activities (see UNHCR 2013). The UNHCR estimates that in 2013, there were 51.3 million refugees worldwide, the largest number of refugees since the United Nations has kept records on this measure (which started in 1989). From graphs published in the latest UN refugee report, we estimate that there have been nearly 855 million global refugees since 1993. Rarely are these victims of state crimes the subject of orthodox criminology (e.g., Mullins and Rothe 2007; Rothe and Mullins 2007).
If one doubts that orthodox criminology ignores the victims of state crimes, all they need to do is pick up one of the leading textbooks on victimization written by a criminologist. Nowhere in those books will one discover a chapter on the victims of state crimes. If one searchers the criminological literature, they will indeed find some discussion of the victims of state crimes (Kauzlarich, Matthews, and Mille 2001). Those studies are not produced by orthodox criminologists but rather by critical and radical criminologists who challenge the orthodox definition of crime. These studies also exist in literature outside of criminology (e.g., Harff and Gurr 1996).
Another question we could raise is the following: Why do orthodox criminologists accept the state’s definition of crime, yet often ignore ways in which the state victimizes its own citizens? This is an interesting question that is confused by the very history of criminology. Depending on how one reads the history of criminology, the origins of criminology can be linked to the work of Cesare Beccaria (Beirne 1993, 1991). One of Beccaria’s chief concerns in his work was addressing the arbitrary and capricious nature of the criminal law and the forms of unjust/excessive punishments that state governments produce. Many criminologists relate the origins of criminology to Beccaria’s work and his concern with the inequities in the criminal law and punishment. Orthodox criminology, however, appears to have forgotten the message of that work and its call to examine law and its capricious and arbitrary tendencies. Instead, orthodox criminology often studies the law as if it were not generally arbitrary and capricious despite all the evidence opposing that interpretation of law. One way of keeping the tradition of Beccaria alive is to challenge the arbitrary nature of law with respect to the definition of crime and with respect to the authority of the state to determine what criminologists study. The state has no authority in criminology, by which we mean that it has no scientific standing and no justification for being privileged above the effort to devise an objective, scientific definition of crime. The ideology of law is its claim to principled judgments and that ideological belief about law is reinforced every time a criminologist neglects their obligation to assess the objective and scientific basis of the state definition of crime. In making the decision to privilege the law, criminology chooses to privilege the state’s authority to determine the definition of crime for criminology. And in making that decision, the state neglects to label its own behaviors as violations of the criminal law and is reinforced in that decision by orthodox criminology’s neglect of the ways in which states violate the law and victimize other states and their own citizens.
That orthodox criminology is unwilling to conceptualize crime independently from the law and to take a stand against the arbitrary nature of law and hence the arbitrary nature of law enforcement and punishment also means that orthodox criminology will fail to appreciate how its choices disadvantage the victims of state crimes. Since orthodox criminology is unwilling to label the state as an offender, it lacks the capacity to treat citizens as victims of state crimes when the state engages in behaviors that cause harms to its citizens. Orthodox criminology’s neglect of the state as offender and its inattention to its victims, while directly related to the assumptions it makes about the definition of crime, may occur for other reasons. The neglect of the definition of crime is the final step in the process. Orthodox criminology may be willing to accept the state’s definition of crime because, in reality, orthodox criminology emerged and continues to act as the science of oppression, using its “scientific” apparatus in the service of the state to identify and oppress the powerless and to maintain the existing structure of power and the forms of state power reinforced by the state’s definition of crime (Lynch 2000).
The state is only held accountable for its crimes when an institution outside of the state is willing to critically examine the behavior of the state and to illustrate the ways in which the state’s construction of the law protects it from its own legal system. International law is one of the processes through which the criminality of the state is exposed. Another possibility for this kind of critique should be found within criminology, which should have loftier goals than the state when it comes to defining crime and excluding its own behaviors from scrutiny (see various studies by Kramer, Micha- lowski, Mullin, and Rothe cited earlier; for a general overview see also Friedrichs 2010).
The final issue we shall raise here is that orthodox criminology’s neglect of state crimes and their victims suggests that orthodox criminology is unconcerned with whether states ought to be punished for their crimes. This has spurred movements within criminology to address victim’s rights and includes the expansion of criminology to a variety of forms of victimization such as spouse abuse that it had historically neglected. Similar concerns ought to motivate orthodox criminology to take up the defense of the victims of state crime. To do so, it must first be willing to define state harms as crimes.
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