The Criminology of War

Ruth Jamieson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351545341
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

The essays selected for this volume provide an overview of the range of issues confronting scholars interested in the complex and multiple relationships between war and criminality, and map the many connections between war, security, governmentality, punishment, gender and crime. The collection draws on the recent theoretical advances made by both criminologists and scholars from cognate disciplines such as law, politics, anthropology and gender studies, in order to open out criminological thinking about what war is, how it is related to crime and how these war/crime relationships reach into peace. The volume features contributions from key thinkers in the field and serves as a valuable resource for academics and students with an interest in the criminology of war.The essays selected for this volume provide an overview of the range of issues confronting scholars interested in the complex and multiple relationships between war and criminality, and map the many connections between war, security, governmentality, punishment, gender and crime. The collection draws on the recent theoretical advances made by both criminologists and scholars from cognate disciplines such as law, politics, anthropology and gender studies, in order to open out criminological thinking about what war is, how it is related to crime and how these war/crime relationships reach into peace. The volume features contributions from key thinkers in the field and serves as a valuable resource for academics and students with an interest in the criminology of war.

Part I
Criminologist on War

[1]

For Criminology in International Criminal Justice

Paul Roberts^* and Nesam McMillan^**

1. Broadening the Horizons of International Criminal justice

Over the last decade International Criminal Justice (ICrimJ) has assumed unprecedented significance, in theory, policy and practice. Little more than 10 years ago international criminal law was an arcane backwater of Public International Law (PIL), frequented by only a handful of specialist practising and academic lawyers, and virtually unknown to the general public. Today, it is commonplace to see ICrimJ issues debated — and with no little sophistication — in the British broadsheet and television news media.¹ In the universities, meanwhile, an army of researchers is hard at work charting the unfolding dramas of ICrimJ.

In the light of its political and legal antecedents, it is understandable that ICrimJ should be viewed as a province of PIL. After all, the ad hoc tribunals were set up under the authority of the UN Charter system for maintaining international peace and security; the law they apply, essentially International Humanitarian Law (IHL), is a sub-field of international law; and the International Criminal Court (ICC), and other significant developments including the special court for Sierra Leone,² have been created by international treaty. True, there has also been substantial input into the content of treaties and rules of court from international human rights law,³ but that, too, is an international lawyers’ subject.

Though the informal annexation of ICrimJ by international lawyers may be entirelypredictable, this does not make it desirable. To the contrary, ICrimJ should, in our view, encompass a broad range of legal specialisms and disciplines beyond law, each of which has an indispensable contribution to make in promoting the success of the overarching enterprise. International lawyers, of course, have essential knowledge and skills to bring to the table. But so, too, do criminal lawyers, proceduralists, human rights specialists, EU lawyers, comparativists, legal theorists, penologists and penal theorists, political scientists, international relations experts, anthropologists, philosophers, historians and – especially, we will argue – criminologists. This is not an exhaustive roster, but it should serve to fix our sights on broader horizons. For if ICrimJ is to avoid becoming a kind of intellectual ghetto, generating commensurately impoverished legal and policy outcomes, it is essential to look beyond the confines of traditional disciplinary boundaries. Legal scholars and social scientists must become aware of the international dimensions of their research and scholarship; and international lawyers must be open to alternative approaches, methodologies and perspectives. All must embrace new forms of collaboration.

Scholars currently working in the field of ICrimJ have been hard pressed simply to keep abreast of rapid recent developments, of which the burgeoning jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is both a paradigm and substantial component.⁴ But now that the first flush of activity has been registered, it is necessary to step back and take some bearings, lest history’s cautionary tales remain unheeded. It is worth recalling that it took almost half a century for the lessons taught by the American legal realists of the 1930s to be picked up and applied to criminal proceedings by British sociolegal scholars in the 1970s and 1980s⁵ (a lesson apparently still ignored in many jurisdictions where empirical research on criminal process remains conspicuous by its absence).⁶ Even today. criminal law may be taught as if it were an abstract system of norms without history or social context,⁷ whilst criminologists’ ignorance of legal doctrine and procedural norms frequently matches doctrinal legal scholars’ ignorance of the criminologicalcontext of penal law.⁸ There is no need to imagine how rigid disciplinary divisions might stunt the intellectual development of a field of inquiry and pre-empt fruitful collaboration between researchers, because these consequences are plain to see in law schools and criminology departments across the continents.

We see no reason why ICrimJ should be consigned to a similar fate, when cautionary tales abound. It would surely be preferable for ICrimJ to be opened out to broader horizons before such isolationist tendencies and stultifying disciplinary exclusivity are allowed to take root. This article advances the case for methodological pluralism in ICrimJ by exploring some of the ways in which criminological theorizing, data, perspectives and research methods should inform the central issues of crime, justice and punishment in the international context. Criminology, we argue, both illuminates international lawyers’ existing penal concerns and opens up important new avenues for further, multidisciplinary inquiry. As well as a contribution to the evolution of more sophisticated conceptions of international crime and penality,⁹ what follows might also be read as a criminological case study exemplifying our broader contention that international policy and practice, as well as academic theory, stand to be enriched by expanding the horizons of ICrimJ.

2. Criminological Orientation

Criminology presents a terminological quagmire to the neophyte. It is therefore wise to begin with some brief preliminary remarks by way of initial orientation. Criminology’s disciplinary constitution and boundaries are themselves the subjects of endless debates, not to say periodic internecine strife and angst.¹⁰ Domestic quarrels over parentage and classification are mostly sterile, however, and at all events unilluminating for present purposes.

On one view, criminology characteristically addresses itself to the discipline-defining question: what is crime?¹¹ Other researchers and theorists would extend the definition to cover all or most aspects of official responses to crime, including policing, prosecution, trial and penal treatment. One might break down this expansive conception of criminology into subdisciplines such as criminal process, penology or victimology, or reconstitute its component parts in terms of intersecting and overlapping concepts such as regulation, risk, trust or restorative justice. The simple rule to remember when confronted with this apparent riot of theorizing is that disciplinary differentiation and rival conceptualizations should be retained and employed if, and only to the extent that, they serve to promote understanding of the issues, questions or phenomena under discussion. The present project calls for a broad, inclusive conception of ‘criminology’, to set against traditional conceptions of international legal scholarship. So, setting possibly idiosyncratic terminological preferences and quibbles aside, our advocacy of criminology in ICrimJ will extend to research on law enforcement, criminal proceedings and penal treatment, in addition to core work on the definition, meaning and causes of crime. Moreover, we mean this conception to embrace pertinent empirical research and theorizing across the broad spectrum of the social and behavioural sciences, regardless of whether particular researchers consider themselves to be ‘criminologists’ rather than, say, anthropologists, social historians or political sociologists.

The internationalization of criminal activity and the emergence of supranational forms of penal regulation¹² present criminologists with new challenges and opportunities to work towards the mutual enrichment of criminology and ICrimJ. There are sure signs that criminology is beginning to evolve beyond its historical preoccupation with municipal crime.¹³ Although genuinely international perspectives withincriminology remain at a relatively formative stage,¹⁴ the growing methodological maturity to be observed in comparative criminology¹⁵ is another welcome indication of an increasingly international outlook.

Beyond its aspirations towards theoretical analysis, explanation and understanding, criminology also sets out its stall as a policy science. Rational criminal justice policy ought to proceed from analysis, explanation and understanding, in the international arena no less than in the domestic, national context. It is true that recent Anglo-American criminal justice policy sets notably bad examples in this regard, having fallen under the malign influences of ‘populist punitiveness’¹⁶ and social exclusion.¹⁷ But the point about bad examples is to learn from them and avoid their repetition. Past disappointments are a feeble excuse for a defeatist retreat into irrationalism.

The next two sections of this article explore, in turn, the theoretical and policy dimensions of criminology, taking the example of genocide as a unifying thread running through the discussion. Genocide is arguably the paradigmatic international crime,¹⁸ as reflected in the adoption of the 1948 Genocide Convention,¹⁹ and in the creation of international tribunals to adjudicate allegations of genocide, from Nuremberg to the former Yugoslavia, Rwanda, Cambodia and East Timor. Genocide, moreover, plugs into established strands of criminological research on homicide, criminal subcultures, victimology, race and gender. Still, it should be borne in mindthat no single illustration, however powerful or apposite, can hope to encapsulate the full range and complexity of the criminological dimensions of ICrimJ.

3. Criminology as Theoretical Inquiry

In taking seriously the question ‘What is crime?’ criminologists have problematized the basic definitions and meaning of criminality, challenged socially dominant understandings of crime and deviance, and exposed the socially constructed nature of official ascriptions of criminal liability. Over the course of the century or so of criminology’s formal existence,²⁰ an enormously rich and varied treasure-store of criminological research and theorizing has accumulated, from positivistic biological, psychological and sociological accounts of offending behaviour, through radical and neo-Marxist critiques of the criminogenic structure of capitalist societies and feminist exposés of patriarchy, to the lately fashionable Foucauldian, postmodernist and poststructuralist criminologies.²¹ Successive waves of criminological theorizing announce themselves as definitive summations and transcending correctives, ousting their predecessors. But it is usually more instructive to view apparently competing theoretical traditions, with their distinctive perspectives and favoured methodologies, as partial representations of complex truths, rather than mutually exclusive rivals. Each has an interesting and valuable tale to tell, but none has an exclusive franchise on the whole story.

A. Deconstructing ‘Crime’

A straightforward application of criminological method might fruitfully be employed to deconstruct the notion of ‘international crime’. International lawyers and international relations specialists will be familiar with the blurring conceptual boundaries between ‘terrorists’ and national liberation movements, which arise, for example, in the context of the political exception to extradition.²² Delving deeper into the trite surface opposition between crime and politics, criminologists have subjectedthe formation, content and application of criminal censure to sustained critical scrutiny from a variety of perspectives.²³

Extending these techniques to ICrimJ would problematize the moral limits of international criminal law, throwing into relief the content and scope of existing offence definitions and principles of liability, and exposing omissions in coverage. Thus, whilst wars of aggression already qualify as international crimes,²⁴ a systematic and unflinching inquiry into the processes and dynamics of international criminalization would place the appropriate forms and limits of legal regulation of all organized group violence and armed conflict on the ICrimJ agenda, whatever the formal legal position might be. Although it may be crucial in forensic contexts to distinguish between, for example, ‘international’ and ‘non-international’ armed conflict, or between ‘genocide’ and (mere) ‘genocidal violence’ or ‘ethnic cleansing’, criminology demands that scholars relinquish their legal positivist safety blanket and contend with the gap between international law and international criminal justice.

The labelling theorists and symbolic interactionists, who dominated American and later, British — criminology in the 1960s and 1970s, made decisive theoretical progress in characterizing criminalization as an active process of social construction and ongoing political influence.²⁵ Working out of this tradition, Stanley Cohen’s celebrated study of the ‘mods and rockers’ British youth subcultures²⁶ provided criminology with a flexible template for analysing periodic ‘moral panics’, in which relatively powerless social groups are further marginalized and scapegoated as ‘folk devils’: social outcasts, troublemakers, deviants and criminals. These processes of social censure²⁷ and criminalization are today being replicated in supranational contexts. Thus, Jock Young has recently drawn attention to the shift within the EU from an inclusive to an exclusive policy towards immigrants from non-EU countries.²⁸ Gripped by a moral panic around the threat of being ‘swamped’, ‘engulfed’ or ‘contaminated’ by foreigners spreading crime and disorder, ‘Fortress Europe’ constructs economic migrants as threatening and essentially devi...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Criminologist on War
• Part II Transformations of War
• Part III Genocide and Crimes Against Humanity
• Part IV Normative Transformations
• Part V Normative Transformations
• Part VI Militarized Masculinities
• Part VII The Post-War Moment
• Name Index