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1 Civil society in uncivil states
‘[A]ll modern concepts of civil society’, according to Mary Kaldor (2003: 31), ‘share the presupposition that the basis for civil society is the rule of law, which applies to both rulers and the ruled and which is underpinned by a set of shared public norms, individual rights and free public expression’. Kaldor is reflecting on the European enlightenment tradition which runs from Ferguson in the 18th century to Habermas (1992). But what, then, does civil society mean under a regime like that of Burma, where, as a leading member of the Assistance Association for Political Prisoners (AAPP) told us, ‘state crime is [the] legal rule of law’ (Ko Bo Kyi, 2013, Yangon)?
In such societies (including those illiberal worlds our research has taken us) we cannot use the concept of civil society to refer to the civilised, public political conversation celebrated by Habermas (1996) or Cohen and Arato (1992). Arbitrary detention, torture, forced disappearances, censorship and killings comprise the language of these regimes, a language in which there is no possibility of civilised conversation – there is simply brutality, repression and resistance. In other states such as Colombia, Kenya and Papua New Guinea (PNG), the government accepts the rule of law in theory but, in practice, civil society groups often face extralegal repression and violence, such as the brutal actions of the PNG and Kenya police, and the menace of right-wing paramilitaries in Colombia.
Even in the most repressive states, such as Burma’s long military dictatorship and Ben Ali’s Tunisia, we find that civil society groups have a commitment to individual rights and free expression which is not yet shared by the government. Such groups share most of the characteristics of civil society as described by Cohen and Arato (1992: 346): their ‘plurality and autonomy allows for a variety of forms of life’, including, for example, religious practices disapproved by the state; they construct ‘institutions of culture and communication’, for example by the clandestine production of video documentaries; they constitute ‘a domain of individual self-development and moral choice’, and they seek, even if they have not attained, the ‘general laws and basic rights’ needed to secure this sphere of activity from the state.
Even without such legal protections, there are spaces where civil society can organise in relative safety. In Burma, for example, these included some monasteries and tea shops, with mosques, lawyers’ offices and coffee houses (in an ironic echo of Enlightenment Europe) playing a parallel role in Tunisia.
Given the discussion thus far it is clear that we consider civil society to represent those organisations or associations which are independent of the state, not part of organised political parties and not closely aligned with armed resistance movements (although there may be some relationship).
In states where there is no recognised legal role for political parties then those organisations which represent the potential beginning of a political party may be considered within the realm of civil society particularly in those circumstances under which civil society must operate clandestinely.
While the role of domestic and transnational civil society in promoting human rights norms has received increasing attention since the seminal work of Risse et al. (1999), this burgeoning literature on civil society has focussed mainly on developed or middle-income countries. For example Gidron et al. (2002) have identified the role of ‘peace and conflict resolution organizations’ as ‘a newly emerging field of study’ – but they maintain that ‘at least a rudimentary framework of democratic and legal infrastructures’, which they take to be absent in many of the states experiencing the highest levels of violent conflict, is required to support such organisations (ibid.: 6). There is, however, evidence that civil society has played a significant role in peace-building and democratic transition in poor and severely conflict-torn countries: for example in several West African states (Adekson 2004). Our own research documented here and elsewhere (Green et al. 2014) challenges the assumption that democratic structures are a necessary precondition for the emergence of civil society.
Another important body of literature, more oriented around struggles in developing and authoritarian states, examines the theory and practice of ‘civil resistance’, that is ‘the use of methods of nonviolent action by civilians engaged in acute conflicts with opponents not averse to using violence to defend their interests’ (Schock 2015: 1). This work tends to be more political and less liberal democratic in its focus than that produced by scholars of civil society (see for example Randle 1994; Sharp 2011; Dudouet 2015; Schock 2015). Such ‘acute conflicts’, however, comprise only a part of what civil society organisations (CSOs) do. They also engage in information-gathering, community education and charitable work, all of which can help in building the foundations for democratisation and exposing and resisting state crime.
This book develops our central and long-standing contention that the concept of civil society is essential when thinking about crimes committed by the state (as well as about state responses to the crimes of others). In previous work (e.g. Green and Ward 2000, 2004), we argued that the concept of civil society helps in understanding how states can be ‘criminal’ in a criminologically or sociologically relevant sense. Crime is one type of deviance, and state crime is a form of organisational deviance, that is, deviant activity conducted in pursuit of the goals of an organisation. The idea of deviance implies that the behaviour violates some kind of norm and attracts some socially significant censure or sanction. This is where civil society comes in.
Civil society and state crime
We view the concept civil society as part of the ‘logic’ of criminology, as a social science concerned with rules and rule-breaking. The rules with which criminology is concerned are backed up by some kind of serious organised public pressure to conform to them. To the extent that criminology is a coherent discipline at all – as opposed to an eclectic mix of borrowings from other disciplines – its coherence derives from its focus on the dialectic between individual and organisational behaviour and organised negative responses to it.
Conventionally, criminology has confined itself to one particular form of public pressure, namely that exerted by criminal justice systems in modern states. This means that conventional criminology leaves it to the state (or supranational institutions in the case of international crimes) to define its subject matter. Many critical criminologists find this unsatisfactory. One might indeed argue that critical criminologists are by definition those who set out to question official definitions of crime.
The roles of civil society in relation to crime, particularly state crime, include the following.
First, civil society is engaged in naming forms of criminal behaviour – that is, whether or not some word equivalent to ‘crime’ is actually used, identifying certain forms of behaviour as seriously harmful, wrong and needing to be stopped. It is evident from our research that CSOs don’t necessarily use the vocabulary of ‘crime’; indeed some are puzzled by it. Regardless of the label used, the essential point is that state actions are seen as an illegitimate exercise of authority. We are interested in the social processes by which this occurs – including the ways in which CSOs draw upon legal, religious, cultural and other normative frameworks, how they interpret and apply them and how they disseminate their views. In many cases this will involve subsuming the behaviour in question under some existing legal category, and either identifying it as meeting the criteria of the existing category, or demanding that the category be extended to include it. There has been much argument within criminology over whether to define ‘crime’ in legal terms, to define it more broadly, or to abandon the language of ‘crime’ altogether in favour of a concept of ‘social harm’ (Hillyard and Tombs 2004). While it should be clear that we favour the second of these positions – crimes are behaviours defined by some significant audience as seriously harmful and wrong – there is no need to labour the point, as in the context of highly repressive states the main forms of state crime will be manifestly illegal by international standards, for example torture and murder.
Second, civil society makes instances of this behaviour publicly visible. This is, as we shall illustrate later, a complex process involving the gathering of information, deciding which information to believe and endorse, and disseminating it in a credible form. In the case of repressive, secretive regimes both the naming of state crime and the dissemination of information about it will often involve some form of ‘boomerang effect’ (Risse et al. 1999), in which the information is first transmitted to CSOs outside the relevant state and then ‘flies back’ in the form of international pressure and adverse publicity for the government.
The third role of civil society is that of putting pressure on the perpetrators of crime to cease their activities and/or make amends for them by some form of acknowledgement, apology or reparation. The pressure may be direct, in the form of demands, messages and perhaps threats addressed directly to the government or other perpetrators, or indirect, where the pressure is placed either on formal institutions of the state (where these are perceived as having a degree of legitimacy and not as perpetrators of the crimes in question), or on other states, global CSOs and transnational institutions. Here again, the boomerang is an important weapon in civil society’s armoury.
From our perspective as criminologists (and as moral beings), what is ‘criminal’ or ‘legitimate’, especially in relation to crimes of the powerful, is not determined by law and the state but is a matter of moral and political consciousness. The actual expression of that consciousness, as our testimony (and the history of social and political change) reveals, is most obviously and powerfully delivered through the medium of civil society.
The extent to which CSOs relied on formal legal mechanisms varied widely between countries and between organisations. Some organisations were wary of diverting resources into litigation with little eventual result. Some courts, such as the Constitutional Court in Colombia, were seen as enjoying substantial independence, while others, particularly in Burma, Tunisia and Turkey, were viewed as tools of the government. But even where the actual operation of a state’s legal system was viewed with suspicion or hostility, there was widespread support for – or at least a pragmatic acceptance of – ideals of constitutional government, human rights and the rule of law. One aim of articulating their struggles in these terms was to reach an international audience which might place pressure on the repressive regime.
Groups challenging repressive states did not have a simple binary choice between ‘democratic’ and ‘violent’ strategies. The concept of civil society must, therefore, be broad enough to include groups that countenance political, even if the actual practice of organised violence is, by definition, not a ‘civil society’ activity. Violence as a means was only rarely discussed by our interviewees – when pressed outright rejection of it was the most common response. But in many of our interviews violence is alluded to in more ambiguous ways, as discussed in Chapter 9.
As noted in our earlier work (Green and Ward 2016) civil society is not necessarily progressive. Indeed, as Becker emphasised 50 years ago, the efforts of moral entrepreneurs are often directed against activities that are not seriously harmful by any objective standard and are viewed as seriously wrong only by a certain constituency. The obvious examples are the virulent political homophobia flourishing in so many states, and Islamophobia and racism manifested even by otherwise progressive civil society groups, as we shall see in the case of Burma. Moreover, it would be naïve to suppose that campaigns against corporate or state-corporate crime always proceed from altruistic motives. In the Ivory Coast, for example, Thomas MacManus (2018) found that what at first sight appeared to be grass-roots campaigns for justice against a grievous incident of toxic waste dumping were really little more than money-making schemes.
This book lends empirical weight to the theoretical proposition that civil society remains the most potent force in exposing, defining and countering crimes perpetrated by states (Green and Ward 2013). To understand the interplay between deviance and social control in respect of routine practices of oppression and corruption, it is essential to take account of the informal mechanisms of social control within a society. In almost any society it is possible to locate organisations outside the state which articulate norms of behaviour that they consider should apply to state officials (often expressed in terms of human rights), expose deviations from these norms and exert pressure on the state to conform to them. International relations and politics scholars have highlighted the importance of transnational networks of NGOs, as well as domestic civil society, in promoting conformity to human rights law (Risse et al. 1999, 2013; Simmons 2009; Sikkink 2017).
One major contribution to theorising civil society is the work of Antonio Gramsci, which has exerted a major influence on critical criminology through the important work of Stuart Hall and his colleagues (Hall et al. 1978, 2013). For Gramsci, civil society comprises ‘a multitude of private associations’ (Gramsci 1971: 264) but one dominated by those associations that promote the hegemony of a ruling class or bloc. Insofar as it promotes hegemony or rule by consent, Gramsci views civil society as being part of the ‘state’ in a broad sense of the term, although distinct from the formal, politico-juridical state (ibid.: 261–3).
At the same time, civil society is a contested space within which counter- hegemonic associations and ideas can flourish. In Prison Notebooks Gramsci points to the distinction, drawn first by Hegel, between civil and political society then, as Hardt (1995) observes, then inverts that distinction in his claim that ‘…the State’s goal is its own end, its own disappearance, in other words, the reabsorbtion of political society within civil society’ (Gramsci 1971: 253). The ‘totalitarian’ state, thus, aims to eradicate or incorporate all associations that might challenge its rule (ibid.: 265).1
Gramsci’s conception of civil society suggests an important distinction between two patterns of state-civil society relations determined primarily by the state’s position on the coercion-consent continuum. All the states in our study employed high levels of coercive governance, but some were significantly more coercive and less open than others. We explore this distinction in the next section.
Autocracies and flawed democracies
We find both of these two patterns – civil society as a contested space, and as an adjunct to a totalitarian regime – in the six countries in our study. Four of the six countries in our study fit Gramsci’s model of civil society as a contested arena. Colombia, Kenya, Turkey and PNG are all more or less fragile democracies in which some oppositional civil activity is tolerated (although in the case of Turkey, this is less true at the time of writing than it was at the time of our fieldwork). On the other hand, Burma and Tunisia in the periods in which our study was focussed conformed more closely to Gramsci’s notion of totalitarianism. In these countries there were two civil societies – a compliant one, largely constructed by the state itself, and an oppositional civil society that operated largely clandestinely. Since subsequent chapters concentrate on the genuine, autonomous civil societies of all six countries, we shall say something in the next section about the pseudo-civil society of Burma and Tunisia. First, let us briefly sketch the nature of the state and civil society in our four flawed democracies.
To anticipate briefly what will be discussed in detail in subsequent chapters, civil society in the flawed democracies is able to operate openly but faces risks that would not be so pronounced in more stable societies. For example, we were shocked to learn, not long after our research in Kenya was completed, that the state was attempting to label two of the most established and entirely peaceable groups in the Mombasa area – MUHURI and Haki Africa – as ‘terrorist supporters’ and freeze their assets, while the British journalist Lucy Hannan, one of the founders of the human rights education group Inform Action, faced expulsion from the country (Greenslade 2014). Eventually, however, all three won their battles against these measures in the Kenyan courts – something that...
