State Crime

Alan Doig

• Publisher: Willan
• Year: 2010
• ISBN:
  9781136840005
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Criminologie

This book provides an introduction to state crime, with a particular focus on the UK.

The use of crime by the UK to achieve its policy and political objectives is an underdeveloped aspect of academic study of individual and institutional criminality, the exercise of political power, public policy-making and political development. The book provides an overview of definitional issues before exploring possible examples of state crime in the UK and then considering why state crime occurs and how it is investigated and adjudicated. State Crime is split into six sections in order to address a number of key questions: what is state crime according to the literature? What is a crime? What is the state? What are the drivers for the State to commit a crime? What are the roles of the various institutions of the State in being involved in state crime and what, in terms of monitoring or investigating state crime or unethical conduct, are the roles of those institutions, from the police through to Parliament, responsible for holding governments and state institutions to account? Unusually for books on state crime, this book looks at a specific country as the context within which to explore these issues. Further, it not only looks at crime but also the structure of the modern state and thus provides a balanced and rigorous perspective with which to study the concept of state crime.

Overall, this book seeks to provide an introduction to state crime for contemporary states which will facilitate the study of such issues as part of mainstream academic study across a number of disciplines.

Chapter 1
The issue of British state crime: introduction

Inquiries and crime

On 12 January 2010 the Conclusions of the Committee of Inquiry on Iraq were summarised as follows:

the policy was worked out at the start of August 2002 in discussions between the new Minister of Foreign Affairs and a small group of civil servants. This policy subordinated the question of legitimacy under international law to the policy principles defined by the Ministry of Foreign Affairs. Insufficient importance was attached to the information provided by the intelligence services (whose assessments of the threat posed by Iraq’s WMD programme were much more equivocal than government ministers were in their communications with Parliament) and the weapons inspection reports. Ministers and departments extracted those statements from the intelligence services’ reports that were consistent with the stance already adopted.

The government did not disclose to Parliament the full content of the request that the US made, concerning cooperation with planning for the mobilization of a military force to compel Iraq to comply with Security Council Resolution 1441. Despite the existence of certain ambiguities, the wording of Resolution 1441 could not reasonably be interpreted (as the government did) as authorizing individual Member States to use military force to compel Iraq to comply with the Security Council’s resolutions, without authorization from the Security Council.

While much of this may sound familiar, the conclusion is not, however, from the Chilcot Inquiry into the circumstances of the UK’s invasion of Iraq. It comes from the inquiry into the Dutch government’s involvement in the invasion of Iraq, which concluded that ‘the military action had no sound mandate under international law’ (Commissie van onderzoek besluitvorming Irak, The Hague, p. 531).

In other words, the Dutch government stood accused of breaching international law – or put more simply, of committing a state crime. In December 2009, the Daily Telegraph carried an article that asked (rhetorically), ‘Is Tony Blair a War Criminal?’ – just before the start of the work of the Chilcot Inquiry into the same use of officially sanctioned military force. Comprising of Privy Counsellors and chaired by Sir John Chilcot, a former senior civil servant, with no powers but with a promise from the Prime Minister that it would have access to any British document¹ or witness, the inquiry was to review ‘the UK’s involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned’.²

One of the questions it answered in advance was:

What will the Inquiry do if it receives evidence or information about criminal offences?

If the Inquiry receives credible evidence that criminal offences have been committed that has not previously been referred to the investigating authorities, it would be obliged to refer that evidence to the appropriate investigating authority. (www.iraqinquiry.co.uk/FAQ)

The Chilcot Inquiry’s membership, powers and terms of reference were in contrast to another inquiry set up over a decade earlier, in 1998, into the shooting by British soldiers of British citizens in Northern Ireland. This inquiry had High Court status, with consequential powers and personnel; its terms of reference were to review ‘the events of Sunday, 30th January 1972 which led to loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day’. It too responded to a similar question:

Have any witnesses been granted immunity from prosecution?

No. However, the Attorney-General has stipulated that any written material or oral evidence provided by a witness cannot be used to incriminate that witness in any later criminal proceedings … This does not rule out the possibility of future criminal proceedings against an individual, only that their own evidence to the Bloody Sunday Inquiry cannot be used against them. (www.bloody-sunday-inquiry.org/questions-and-answers)

Both UK inquiries involved, and involve, elected politicians and a range of public officials (or, in the case of the armed forces, agents of the state). Both involve official state activities which may or may not be considered to be unlawful or criminal. Both inquiries could thus fall within the academic concept of state crime.

Two contemporary inquiries: from Northern Ireland to Iraq

The Saville Inquiry

The 1972 shootings of protest marchers by 1st Battalion, the Parachute Regiment (1 Para) soldiers in Derry, Northern Ireland raised a number of questions. Were the shootings lawful killings, or did a government, or members of a government, instigate, endorse or approve potentially unlawful actions? What would be their motivation, what controls would be in place to judge their conduct, what institutional structure allows such conduct to take place? The shootings had long been the subject of dispute and debate, not least because of the unique circumstances of soldiers in what was considered to be a western liberal democratic state opening fire on its own citizens exercising their right to peaceful protest against the policies of the region’s government.

It is not disputed that there were some armed men and sounds of shooting in the vicinity. It is also not in dispute that none of those shot by the soldiers were involved in the shooting, or carrying weapons, or engaged in any behaviour that could lead to them being suspected of either. What is in dispute is whether the soldiers came under fire and, in responding, inflicted collateral civilian casualties among the innocent protesters, whether they returned fire into that area of the protest march from which they thought the shooting had come, or whether they unilaterally opened fire without justification.

There had been an official inquiry in 1972, the Widgery Inquiry. This was also a full-blown statutory tribunal of inquiry, with the powers of a High Court under the 1921 Tribunal of Inquiries Act (see p. 227 below). It was generally assumed to be a pro-government whitewash: the inquiry chair, Lord Widgery, the Lord Chief Justice, argued that the intention of the senior army officers to use the Parachute Battalion as an arrest force, and not for other offensive purposes, was sincere. Allegations to the contrary were dismissed as unsupported by any ‘shred of evidence … there is no reason to suppose that the soldiers engaged in the arrest operation would have opened fire if they had not been fired upon first’.³

The pressure on the incoming Labour government in 1997 for a new inquiry was one of several demands from Provisional Sinn Fein. This would secure redress of a continuing grievance (over both the shootings and the findings of the Widgery Inquiry) but which could also populate its past with explanations for what it did and what it had to do in terms of violent armed activity. One of these was that the British state had unilaterally initiated officially sanctioned and potentially illegal violence against its citizens. This could more than explain the necessary armed role on the part of what was at the time a small and unorganised Provisional IRA (PIRA). PIRA had been set up by members of a dormant Official IRA in response to the latter’s own lack of action to protect Catholics from official state harassment and violence.

This role could be validated, in Republican eyes at least, if it could be shown that it was the British state that had taken the war to the nationalist movement, then involved in peaceful protest, by opening fire without warning on what was to become known as ‘Bloody Sunday’. That soldiers may have been ordered to open fire by senior officers – whatever the circumstances on the day – was one issue. Other, more important, issues were whether there was evidence to show that the orders came from the British state, and whether the state fixed the Widgery Inquiry to protect those acting on its behalf.

State crime has as much of a ring about it as the British state. To the Republican movement and others, the British state has long been seen as a monolithic structure, dominated by a ruling elite and fronted by a government whose raison d’être was representing the interests of that elite, both in Westminster and in Stormont. While the army leadership would clearly be part of that elite and thus culpable if it could be shown that they ordered the shooting without warning or justification, a major goal behind pressure for a new inquiry would be uncovering the authority of the state in ordering the shootings. In other words, ‘the use of unlawful lethal force’ against its own citizens and the subsequent David and Goliath contest facing the embryonic protest movement would show to the world the ruthlessness of the response to any challenge to the state by some of its disenfranchised citizens.

No one would argue too much that the state in Northern Ireland was antagonistic to Roman Catholics. Successive Protestant-dominated governments ensured their political primacy through electoral gerrymandering,⁴ openly exercised discrimination in terms of housing, education and employment policy in the public sector, and refused to engage in any dialogue with any group whose loyalties appeared to be openly directed towards becoming part of another sovereign state.⁵ There was no doubt that the Northern Ireland politicians would, and often did, increasingly tolerate the use of disproportionate force against the emerging protest movement, also doing so in the full knowledge that their ideological and political stance was shared by the Northern Ireland public sector, law enforcement and criminal justice system in general. Further, their opponents believed that the Northern Ireland government did nothing that did not have the acceptance of the mainland government.

The New Labour government elected in 1997 was keen to deliver what became known as the Good Friday Agreement and demonstrate a major breakthrough in the future of that part of the United Kingdom. At the same time, the government had to take cognisance of the fact that the year was also the 25th anniversary of the shootings and that the Irish government had also issued its view of events, claiming that new material:

provided fresh grounds for the belief that members of 1 Para wilfully shot and killed unarmed civilians. It suggested that the approach and conduct of the Widgery Inquiry was informed by ulterior political motivation from its inception … As is evident from the foregoing assessment, it can be concluded that the Widgery Report was fundamentally flawed. It was incomplete in terms of its description of the events on the day and in terms of how those events were apparently shaped by the prior intentions and decisions of the authorities. It was a startlingly inaccurate and partisan version of events … contrary to the weight of evidence and even its own findings, it exculpated the individual soldiers who used lethal force and thereby exonerated those who were responsible for their deployment and actions. (Department of the Taoiseach 1997)

One of the Labour government’s major concessions to facilitate the peace process was the creation in 1998 of the Saville Inquiry, another Tribunal of Inquiry, to establish exactly what happened in 1972.

Evidence produced for the Tribunal provided a somewhat uneven paper trail over military discussions about the use of force, including the shooting of ‘selected ringleaders’. When the Saville Inquiry called the then Prime Minister Edward Heath, it met with denials over seeing intelligence briefings, including the ‘selected ringleaders’ briefing, or putting pressure on the original Tribunal chair on how the findings may be interpreted (Heath warned Lord Widgery before the inquiry started that Britain was locked into a propaganda war, as well as a military war).

Heath, who had lived long enough to be treated as a ‘grand old man’ of British politics, was not likely to give anything away. He had been Government Chief Whip during the Suez Crisis and knew all about the public and pragmatic sides to politics. When he was asked about the use of force, he brushed aside any suggestion that his government decided to alter its approach to dealing with the disturbances or that it supported an army suggestion to shoot to kill. In that, of course, he was supported by Cabinet minutes and other official documents. But then British Prime Ministers are not likely to put their names to what effectively could have been warrants of execution against British citizens.⁶

Indeed, in the end, the Saville Inquiry quickly dismissed any suggestion that this could have or had happened. It did manage to identify wrongful acts and decisions on the day of the shootings but stopped short of identifying any which could be described as unlawful or so negligent or reckless as to lead to unlawful acts. Overall, its main finding in its June 2010 report was that ‘the immediate responsibility for the deaths and injuries on Bloody Sunday lies with those members of Support Company whose unjustifiable firing was the cause of those deaths and injuries’ (Bloody Sunday Inquiry 2010, Vol. I, Ch. 4, para 4.1).

This stopped short of the use of the term ‘unlawful’, as opposed to unjustifiable, because the report believed that indiscriminate and sustained shootings followed mistakes on the day by officers. 1 Para was ordered to undertake arrests when both officers and soldiers were unfamiliar with the location and unclear as to who was to be arrested. 1 Para was also alerted to the possibility of being fired upon.

The evidence for this was a consequence of the report drilling down over a decade into endless detail of which soldier was where on the particular day, and the detail of events as they unfolded to suggest a series of erroneous actions and mistakes which, when combined together, led to the ‘serious and widespread loss of fire discipline among the soldiers’ (Bloody Sunday Inquiry 2010, Vol. I, Ch. 5, para 5.4).

Even at that level, the report avoided looking to see if there was a prior culture of the unjustified shoot...