Political Expression and Conflict Transformation in Divided Societies

Criminalising Politics and Politicising Crime

Daniel Kirkpatrick

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000698893
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Peace & Global Development
• Index: Politics & International Relations

This book considers how the social construction of crime and the criminalising of political expression impact upon different stages in a violent political conflict.

The freedom to express our political opinions is regarded as an essential human right throughout most of the world, and yet, in defence of our security, governments often place various restrictions on it. This book directly considers what these restrictions are in the context of deeply divided societies to understand how they impact upon intergroup relations in four different contexts: nonviolent movements, counter-insurgency, peace negotiations, and post-settlement peacebuilding. Drawing on an extensive body of original interviews and archival material, the volume analyses this relationship through an in-depth consideration of Northern Ireland and South Africa, followed by a wider analysis of Turkey, Sri Lanka, Belgium, and Canada. The overarching argument is that the implications of criminalising political expression depend on both its 'target' and the wider social reality it contributes towards.

This book will be of much interest to students of conflict resolution, transitional justice, law, and International Relations.

1
Criminalisation and the social reality of crime

The threat of ‘crime’ and the ‘criminal’ are evocative concepts, which, when applied to behaviours and individuals, enable the labeller to delegitimise their target, justify certain security powers, and implement sanctions. For instance, by defining the crime of ‘theft’, the state not only determines what constitutes the crime, but also establishes the parameters for punishment, providing for certain enforcement powers like police searches and also delegitimising the perpetrators of the offence by labelling them as criminals. Yet in the context of political conflict this process has profound implications for the nature of conflict itself and particularly so in the case of deeply divided societies (DDS). In such cases, if the state is dominated by a single group, the state may use criminalisation to target certain forms of political expression as a means of subordinating other groups. In other words, criminalising political expression (CPE) has considerable power to shape intergroup relations in ways that could either facilitate or undermine conflict transformation.

Previous research has shown how such measures are often used by states because they can provide a legal veneer over state repression (McEvoy and Rebouche, 2007; TRC Report 4, 1998), help consolidate in-group cohesion (Ó Dochartaigh, 2013; Patterson, 1999; Todd, 1987), justify expanded security powers (Brewer, 1994; Donohue, 1998; Dugard, 1978), and delegitimise opposing groups (Abel, 1995; Brewer et al., 1996; Frankel, 1979; McConville, 2014). But while these studies have provided a number of valuable insights into the significance of criminalisation for conflict analysis, none have gone so far as to develop a substantive theory of criminalisation or identify a pattern of state behaviour. This has three important implications: firstly because it tends to result in crime being studied as a “taken-for-granted construct” (Cohen, 1996:3) implicitly assuming the legitimacy of the labeller (the state), the practices of labelling (law enforcement), and the acceptance of the label within the wider population (narrative), even when this legitimacy is subject to contestation and resistance. The contestation of prisoners over political status, and the concept of ‘prisoners of conscience’ are emblematic examples of these challenges where the label’s legitimacy is called into question. Secondly, it can lead to a conflation of non-violent and violent political expression making it unclear what the distinctions are between them. Thirdly, criminalising political expression embodies a fundamental process that shapes conflict transformation and is shaped by it, meaning it has the potential to affect the destructive and constructive transformation of a conflict. Developing a theory of CPE, accordingly, will demonstrate how such a relationship may operate in particular contexts. Finally, while these questions are clearly important for violent conflict, they are also significant for freedom of expression more broadly; how legislation designed to ‘protect’ freedom can be used to suppress it instead. Indeed, recent (and not so recent) developments in counter-terrorism legislation and practice embody a range of these problematic characteristics so fundamentally opposed to conflict transformation.

Analysing such a process requires a consideration of both the formal legal process embodied in legislation and its conformity with legal norms, but also – and arguably of greater importance – its diffuse implementation through law enforcement, the media, and wider society. For instance, implementing new drug regulations into an Olympic sport may be assessed in relation to how they complement or bring new meaning to current regulations, but also how they will impact the training and practices of athletes, how they are represented in the media, and whether they increase or decrease public trust in the sport. The implications of these rules, accordingly, depend on their informal interpretation by athletes, coaches, the media, and general public. This chapter therefore draws together critical criminological and legal research with conflict analysis to develop an interdisciplinary conceptualisation of criminalising political expression.

Furthermore, in order to consider the various aspects of political expression that may be criminalised, the chapter distinguishes between three different manifestations: political identity, activity, and violence. Each of these types of political expression relate to different manifestations of expression from simply holding a political viewpoint, to campaigning and exercising that view, to violently enforcing or fighting for that view. Therefore, while these categories overlap, they relate to distinct processes, particularly in terms of their implementation and perceived reality. Distinguishing between them enables these implications to be considered from a comparative perspective, to see how each individually and collectively operates. In these ways this chapter discusses the theoretical framework that the rest of the book applies.

Crime and conflict analysis

Research into the relationship between criminal activity and political violence can be categorised into four broad sub-fields: economic approaches to conflict, the crime-terror nexus, human rights approaches, and critical approaches. Of these, the first three can be grouped together in relation to their analytical assumptions regarding crime as a legitimate and measurable concept, whereas critical approaches begin from a distinct epistemological position. In other words, the first three approaches all consider specific defined criminal behaviours from legal positivist and state-centred perspectives, just different types and through different theoretical and methodological frameworks – that is, how they conform to human rights norms or confer economic benefits.

Economic approaches focus on the economic benefits of a violent conflict, and how some actors perceive war as profitable, taking advantage of the security vacuum to develop lucrative criminal enterprises through the extraction of natural resources, the drug trade, extortion, and looting (Collier, 2000; Collier and Hoeffler, 2004; Duran-Martinez, 2015; Keen, 1998; Lujala, Gleditsch and Gilmore, 2005; Mehlum, Moene and Torvik, 2002; Mueller, 2000). In such cases actors are not engaging in violence to advance a political cause, nor fighting to defeat an enemy, but instead seek to perpetuate violent conflict because it is lucrative to do so. Whether it is the extraction of diamonds, extortion, or looting, these criminal acts are treated as a definitive and homogenous variable primarily based in the self-interest of actors. For instance, Collier (2000:852) argues that rebellion is “a variety of crime” with “the only difference from common crime being that predation is directed against natural resources instead of household wealth”. The differences between ordinary crime and the crime of rebellion are therefore only in terms of the scale. So while such studies provide insights into how the ‘crime’ variables impact conflict, they do so through an essentialised construction of the ‘criminal’ and ‘criminal behaviours’.

In contrast, research on the ‘crime-terror’ nexus discusses how there is a convergence between organised crime and terrorist groups, whether through alliances between such groups, or through terrorist groups developing ‘in-house’ criminal capabilities (Hutchinson and O’malley, 2007:1095; Cornell, 2005; Kynoch, 2005; Oehme III, 2008; Sanin, 2004; Silke, 1999). Some of these studies focus specifically on ‘terrorist’ groups, whereas others will discuss insurgents or other politically motivated violent actors, but throughout all of these studies is a focus on the permeable boundaries between political violence and criminality. For instance, some analyse how terrorist groups are financing political activities through organised crime, or drawing on networks with organised crime to provide a support role for their political violence. These approaches tend towards a more complex understanding of crime by engaging with its diffuse boundaries with political violence, but still underpinning them is a positivist understanding of crime.

Human rights approaches include a wide range of studies which consider specific criminal behaviours in the context of conflict – such as sexual violence, genocide, acts of terror, amongst many others – through a human rights framework (Cohen and Nordas, 2015; Edwards, 2008; Wachala, 2012; Walsh and Piazza, 2010). Now while each of these approaches varies considerably, they all consider certain criminal behaviours through a normative framework; that the crimes under analysis are violations of human rights. The theme of the ‘criminal problem’ is implicit throughout, with the normative focus being to prevent or address criminality from (re)occurring. Resolving conflict from these perspectives becomes synonymous with re-establishing the rule of law; ensuring that legal norms are abided by and human rights are respected. While they often will seek to change the law to address these issues, it is the state who represents the guarantor of these norms, and so it is through a reformed or enhanced state system that crime will be addressed. However, this assumes an objective criterion – human rights – to base their analysis on. The cultural interpretation of human rights, and their subjective implementation and realisation through politics, means focusing on an objective criterion created by states will be unable to account for the “complex and dynamic process of categorisation and discrimination” as opposed to the “static process of deductive reasoning from premises set by a legal definition” (Lacey, 1995:8). Therefore, the above assumptions are problematic given that those involved in assessing human rights are doing so through a subjective, culturally bound, politically defined framework.

Furthermore, these approaches do not engage explicitly with criminalisation because its source of legitimacy – the state – is assumed. Instead they implicitly conform to the predominant legal framework of legal positivism. From this perspective, law places an obligation on individuals to obey, because to do otherwise would jeopardise social order by causing harm. Criminalisation therefore seeks to “encourage certain types of conduct and discourage others” (Hart, 2008:6); ordering a society so that it follows what is defined as acceptable behaviour. While legal scholars differ over the source of legal legitimacy, the centrality of the state is consistent throughout. Crime is accordingly understood as an established and legitimate concept defined by the state. This was succinctly summarised in an interview with a member of the South African Parliamentary Committee on Justice and Correctional Services: “But nothing justifies crime. Crime is crime and it will always remain crime and it needs to be dealt with as such” (Member of the South African Parliamentary CJCS, 2016). From this perspective crime is a clear and legitimately defined concept. However, the above approaches focus primarily on ‘crimes’ which are widely deemed illegitimate – whether sexual violence, extortion, or acts of terror – but if they are extended to more contested crimes their assumption of state legitimacy becomes increasingly problematic.

This is because both the prognosis and cure associated with the positivist paradigm are restricted in their ability to address the complexity and subjectivity associated with criminalisation in deeply divided societies. This relates to contexts where “ascriptive ties generate an antagonistic segmentation of society, based on terminal identities with high political salience” (Lustick, 1979:326); or put differently, where groups are divided into competing political communities due to factors directly linked to their group identities. The political divisions between groups map onto “potentially violent vertical cleavages” which are serious enough to threaten the composition of the state (MacGinty, 2017:5). Understanding these divisions can be achieved through considering the construction and contestation of group identities as threats to a group’s identity are existential, threatening the security of the group itself. How groups defend or advance their identity relates to the wider cleavages themselves.

In such contexts where the government is dominated by a particular group(s), it may not use criminalisation necessarily as a legitimate mechanism that abides by international norms of justice and equality, but as a mechanism of state power to consolidate its own hegemonic position at the expense of other groups. By criminalising political expression the state can frame an out-group’s identity as ‘criminal’ placing restrictions on its ability to express and promote it, and directing law enforcement against it. In this way criminalisation embodies “disciplinary and regulatory mechanisms… which can serve the scope of a better and more efficient management of population” (Toros and Mavelli, 2013:79) that the state frames as “achieving an overall equilibrium that protects the security of the whole from internal dangers” (Lemke, 2011:37). The problem which emerges, however, is that in deeply divided societies this ‘whole’ often refers to a particular group at the expense of others. Criminalisation frames the ‘threat’ to security in terms of the out-group’s identity, thereby functioning as a factor “of segregation and social hierarchization… guaranteeing relations of domination and effects of hegemony” (Foucault, 1976:141).

Consider the example of Egypt where, following the assassination of then President Anwar Sadat in 1981, an emergency law was re-enacted providing for the banning of public gatherings, censorship, and detention, all justified on “the pretext of fighting Islamist militants” (Abdelrahman, 2015:16). In such a context the label of crime is used to legitimise state repression, consolidating the power of the state at the expense of other communal groups. Therefore, when a particular group dominates the state, this enables that group to use the legal system to suit its own ends perpetuating inequalities rather than to uphold norms of justice. Accordingly, the assumptions of state legitimacy and unit homogeneity with respect to crime are problematic in such contexts, as they will reinforce intergroup divisions by replicating the dominant state discourse of criminality. To understand this political subjectivity and complexity this chapter will, therefore, turn to critical approaches to the study of crime.

A critical conceptualisation of criminalisation

Despite the prevalence of legal positivism in conflict analysis, a number of studies have analysed ‘crime’ through a critical legal or criminological framework (Cohen, 2001; Kennedy, 2006; McEvoy, 2001; McEvoy and Gormally, 1997; McEvoy and Newburn, 2003; McWilliams, 1997; Super, 2013; Walsh, 1983; Zedner, 2005). While these approaches are again varied, they are based on a unifying epistemological approach towards the study of ‘crime’ and ‘criminals’, which argues that the concept of crime is constructed by an authority and ascribed to certain actors. In other words, they reject the positivist claim to objectivity; instead arguing that this leads to a tendency towards “seeing like a state” (McEvo...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Dedication
• Contents
• List of figures
• List of tables
• Acknowledgements
• List of abbreviations
• Introduction: mapping the ‘crime’ of political expression
• 1 Criminalisation and the social reality of crime
• PART I Criminalisation in context
• PART II The evolution of criminalisation
• Conclusion: criminalising political expression today
• Appendix
• Index