Genocide, State Crime and the Law

In the Name of the State

Jennifer Balint

• Publisher: Routledge-Cavendish
• Year: 2011
• eBook ISBN: 9781136654145
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Genocide, State Crime and the Law critically explores the use and role of law in the perpetration, redress and prevention of mass harm by the state. In this broad ranging book, Jennifer Balint charts the place of law in the perpetration of genocide and other crimes of the state together with its role in redress and in the process of reconstruction and reconciliation, considering law in its social and political context. The book argues for a new approach to these crimes perpetrated 'in the name of the state' - that we understand them as crimes against humanity with particular institutional dimensions that law must address to be effective in accountability and as a basis for restoration.

Focusing on seven instances of state crime - the genocide of the Armenians by the Ottoman state, the Holocaust and Nazi Germany, Cambodia under the Khmer Rouge, apartheid South Africa, Ethiopia under Mengistu and the Dergue, the genocide in Rwanda, and the conflict in the former Yugoslavia - and drawing on others, the book shows how law is companion and collaborator in these acts of nation-building by the state, and the limits and potentials of law's constitutive role in post-conflict reconstruction. It considers how law can be a partner in destruction yet also provide a space for justice.

An important, and indeed vital, contribution to the growing interest and literature in the area of genocide and post-conflict studies, Genocide, State Crime and the Law will be of considerable value to those concerned with law's ability to be a force for good in the wake of harm and atrocity.

Chapter 1

Conceptualizing Genocide and State Crime

At the end of the First World War, in his opening speech to the Ottoman Senate on 19 October 1918, the president, Senator Ahmed Riza, invoked the memory of ‘the Armenians who were savagely murdered’. Two days later, when challenged on this, he described the mass murder of the Armenians as an ‘officially’ (resmen) sanctioned ‘state’ crime (devlet eliyle) requiring ‘some kind of intervention’ by the authorities (Dadrian 1994a: 110). The subsequent Courts-Martial into the genocide of the Armenians heard one witness speak of doing ‘government business’ (Höss 1992: 220).

Genocide and other forms of mass harm directed against civilian populations are a particular kind of crime. These are systematic actions taken by the state or the emerging state against particular groups for their destruction or subjugation. What makes these crimes particular is both their enormity, but also their position in relation to the state. These are acts done ‘in the name of the state’. These are not individuals committing crimes, but programmes of mass destruction initiated and carried out by governments or governments in waiting. They are perpetrated over longer (apartheid in South Africa) or shorter (the genocide in Rwanda) periods, with the aim of creating the state in a particular image. They can include crimes of settler-colonialism, that as Patrick Wolfe has suggested, can be understood, unfolding as they do over longer time periods, as ‘a structure rather than an event’, yet with the same logic of destruction and nation-building (Wolfe 1994: 96). They are state orchestrated, harnessing institutions and expressing state policy. The recognition of this mass harm and destruction as state crime is critical for our understanding of these crimes and for their legal redress.

This opening chapter considers different approaches to conceptualizing state crime. State crime, as will be shown, has been defined ranging from unlawful acts committed by state officials, to the denial of sufficient housing, to the commission of systematic human rights violations. The state crimes that I discuss in this book are acts of mass harm perpetrated by states, or states to be. My focus on state crime includes what is core to the international legal conception of ‘crimes against humanity’, in particular its original usage as being violations of human rights on a sufficiently savage or systematic scale, yet being attentive to the state orchestrated nature of such crime. While this kind of orchestrated mass harm is mostly perpetrated by states, it can also, as seen in the case of the Republika Srpska in the conflict in the former Yugoslavia, be perpetrated by organizations with links to existing states or who themselves are attempting to be the state, what I term ‘states to be’.¹ As M. Cherif Bassiouni has noted, non-state actors can ‘parall[el] the organizational power structure of the state’ and thus can be ‘the functional equivalent of state actors’ (Bassiouni 2003: 69).

While ‘crime against humanity’, ‘crime against peace’, and ‘war crime’, as considered within international law, possess a necessary individual dimension, they also importantly possess an institutional state dimension. This chapter argues for a conceptualization of genocide and other forms of state crime that cuts through the disciplinary borders of the social sciences and international law. It considers how we may understand these crimes of the state as a nation-building, and state-directed set of acts – and what this means for our defining mass harm by the state. This becomes important both in terms of how we may address state crime through law, as well as in how it may be prevented. Considering our internationally defined harms of ‘crimes against humanity’ and genocide through a ‘state crime’ lens allows us to address the particular nature of state crime, its institutional and nation-building character. Yet we can also distinguish between these crimes, and what I suggest in the chapter is a conceptualization of mass harm that allows us both to allow for their difference and focus on the institutional and state nature of these crimes. Further, it allows us to consider what appropriate legal redress may look like.

‘In the Name of the State’

The use of the state and its resources marks genocide and other forms of mass harm as a different kind of crime, requiring a particular kind of legal response. The destruction wrought is in the name of the state and part of state policy. It demarcates who is citizen in this state and who is not. It uses the institutions of the state, or state to be, and others to perpetrate crimes of destruction and oppression against civilians under its control.

The vision of a greater Germany, a Third Reich that would be eternal, meant the extermination of an estimated six million Jews throughout occupied Europe (as well as the killing of Romani and other ‘undesirables’). Christian anti-semitism and scientific racism, together with the will and organization of the Nazi state, conspired in the destruction of European Jewry. The Nazi party implemented a raft of legislation for the exclusion of Jews, and then began a system of further segregation, ghettoization, and concentration and death camps. What began with legislation, ended in extermination. At the end of the war, the National Socialist vision, its ‘Weltanschauung’, had resulted in death never before seen, with Auschwitz becoming a symbol of evil. With knowledge of what was happening, as Martin Gilbert (1981) has outlined, came no action from the Allies. In an introduction to the transcripts of the British war crimes trial of the camp commandant Josef Kramer and other officials of the concentration camp Bergen-Belsen, Raymond Phillips writes that when on 15 April 1945 the first British officer arrived at the camp, and Belsen became a symbol of ‘all that had been told (and scarcely credited) of the vileness and rottenness of the Nazi system’,

with public horror at the stories that came from Belsen went a public demand that those responsible should be punished for their deeds … and to many it seemed superfluous that there should be a trial at all, and the popular cry was for a summary identification and execution of the offenders.

(Phillips 1949: xxiii–xxiv)

The Hutu Power of the government and political elites in Rwanda after the Arusha Accords that had sought a power sharing arrangement meant the murder of an estimated 800,000 Rwandan Tutsis (together with some moderate Hutus). Over 100 days, Tutsis were hunted down, rounded up and killed.

Organized months before, the genocide in Rwanda was facilitated by militia armed by the state, communication between the government and the communes, and hate propaganda through radio. As Rene Lemarchand was to write, ‘Planned annihilation, not the sudden eruption of long-simmering hatreds, is the key to the tragedy in Rwanda’ (Lemarchand 1995: 8). Alison des Forges observed:

Extremists used its administrative apparatus, its military and its party organizations to carry out a ‘cottage-industry’ genocide that reached out to all levels of the population … Those with state power used their authority to force action from those reluctant to kill.

(des Forges 1995: 44)

International observers refused to call it genocide. Nesam McMillan (2008) has charted the international failure to stop the genocide, noting, ‘There was a wholesale turning away from the suffering of the Rwandan Tutsis as they were methodically exterminated because they were Tutsi’ (ibid: 1).

From April 1975 to January 1979, an estimated 1.8 million Khmer people were killed by Pol Pot and the Khmer Rouge. Buddhist monks, the Cham Muslim, and Vietnamese, Thai and Chinese in Cambodia, as well as those defined as ‘non-Khmer’, were targeted by the Khmer Rouge. The ‘Democratic Kampuchea’ established by the Khmer Rouge after their taking power in Cambodia was a violent regime. Survivors were to call it kuk et chonhcheang, ‘the prison without walls’ (Hinton 1998: 93). Hundreds of thousands of Khmer were forcibly moved from the cities to the countryside and worked to death. This was to be ‘an era more remarkable than the age of the Angkors’, a slogan they would repeat. The vision of a Cambodia that would be ‘ … a State of the people, workers, peasants, and all other Cambodian working people’ (Constitution of Democratic Kampuchea 1976, Art. 1) was implemented violently by the Khmer Rouge and their cadre, and ended only with the invasion by Vietnam.

On a platform of ‘black peril swamping the cities’, as David Dyzenhaus (1991: 40) notes, the Afrikaner Nationalists in South Africa swept to power in 1948, implementing a system of segregation and disenfranchisement of South Africans that was institutionalized through law. The vision of apartheid resulted in the systematic segregation and subjugation of black South Africans. This gross disenfranchisement that lasted until 1991 with the negotiated settlement between the National Party government and the African National Congress was realized through practices of forced removal, ‘pass’ laws that meant limited movement and access, banning from services, imprisonment and torture and a system of a state within a state. Over 14,500 civilians were killed and many more affected as a result of the apartheid policy, this vision of separateness that was violently implemented by the South African state.

In Ethiopia, what started as a popular uprising against the government of Emperor Haile-Selassie ended as a military coup installing Lieutenant-Colonel Mengistu Haile-Mariam as President, together with a governing body, the Dergue Military Council. Over their 17-year reign, from September 1974, an estimated 200,000 civilians were killed, with many more detained and tortured. Legislation marked out the new regime, orchestrated by Mengistu and the Dergue, and the army and police were used as state executioners. The regime of Mengistu was intent on a ‘new page’ of Ethiopian history, a socialist regime committed to protecting the ‘Revolutionary Motherland’. The new Special Penal Code referred in its preamble to the ‘historic revolution now in progress’, a revolution which had at its core terror, torture and killings, encircling the Ethiopian people. It only ended in May 1991 with the overthrow of the regime by the EPRDF (Ethiopian People’s Revolutionary Democratic Front) and the EPLF (Ethiopian People’s Liberation Front).

The conflict in the former Yugoslavia was a deliberate, orchestrated attempt by the Bosnian Serb and Serbian state leadership, with support from Croatian Serbs, to establish a ‘Greater Serbia’. In reality, this meant a future with, in a particular geographical area of the former Yugoslavia, no non-Serbs, in particular no Bosnian Muslims. Gow puts it succinctly when he writes ‘the war in Yugoslavia was a war for borders, statehood, identity and ideology’ (Gow 1997: 12). What may be termed both a ‘conventional’ war and a ‘war of extermination’ was waged. The objective of Serbian political and military forces was to carve out new borders; as Gow notes, the creation of a new mini-Yugoslavia, to be detached from Bosnia in the east to Serbia, in the south to Montenegro, and in the west to Serb-populated and occupied regions in Croatia (ibid: 35).

The breakdown of Yugoslavia was orchestrated by the former Serbian republic under Slobodan Milosevic, who, as Gow notes, rose to power in 1987 promising to make Serbia ‘whole’ again (ibid: 17). The creation of a Greater Serbia meant the destruction of Bosnian Muslims, orchestrated by the Serbian state in conjunction with the newly formed ‘Republika Srpska’ in Bosnia – through concentration camps, rape camps and mass killings. The International Criminal Tribunal for the former Yugoslavia found in the Tadic case that the Bosnian Serb army was largely established, equipped, staffed, and financed by the Yugoslav Peoples’ Army, the JNA (The Prosecutor v Duško Tadic 1997). This was a case of both the state and the ‘state to be’ following a plan of destruction in the name of the new ‘nation to be’, a ‘Greater Serbia’. Their actions resulted in the deaths of an estimated 300,000 former Yugoslavs, mainly Bosnian Muslims, killed in Bosnia-Herzegovina, the dissolution of what was formerly known as Yugoslavia, and the traumatization and dislocation of many thousands more.

The genocide of the Armenians was perpetrated by the Ottoman state under cover of the First World War. With the entry of Turkey into the war, an opportunity arose for the destruction of what was seen as an alien nation, preventing the establishment of a ‘Pan-Turkic empire’. This Greater Turkey had no room for Christian Armenians, mostly tolerated, albeit as second class citizens, over centuries. With political incursions into the Ottoman Empire and internal instability in the years leading up to the First World War, this was to change. The ‘Committee of Union and Progress’ (known as the ‘Young Turks’), which had on its establishment been a force for change, moved away from what Richard Hovannisian has described as egalitarian Ottomanism to the new ideology of Turkism, which would ‘give justification to violent means for transforming a heterogeneous empire into a homogeneous state based on the concept of one nation, one people’ (Hovannisian 1986: 28). Under the leadership of Talat Paşa, Enver Paşa and Cemal Paşa, the leaders of the ‘Young Turks’, the Ottoman state began a programme to annihilate the Armenians. This began with the arrest, deportation and killing of leaders of the Armenian community in April 1915, followed by the mass deportation of Armenians designed to result in their death, and the killing of Armenians in the Ottoman armies. An estimated 1.2 million Armenians were killed from 1915 to 1918. The American Ambassador at the time wrote: ‘I am confident that the whole history of the human race contains no such horrible episode as this. The great massacres and persecutions of the past seem almost insignificant when compared to the sufferings of the Armenian race in 1915’ (in ibid: 30). Telegrams sent by the Minister of the Interior Talat Paşa to the Governor of Aleppo show the intent of the genocide by the ruling Young Turk Ittihadist Party. The account of Arnold Toynbee shows the systematic and thorough nature of the destruction – as he observed: ‘It was a deliberate, systematic attempt to eradicate the Armenian population throughout the Ottoman Empire, and it has certainly met with a large measure of success’ (in Melson 1986: 64).

These are all state crimes and systematic, directed, purposeful acts that are state policy, intended to result in mass harm and destruction. These are searches for the perfect society, a search, which as Isaiah Berlin noted, is a recipe for bloodshed (Berlin 1991). It is a search harnessed to the institutions of the state, and as such has far wider implications and results than any mere fantasy of any group. The destruction and systematic oppression is integrally connected to the definition and the future of a state, and is a violent exercise of consolidation, targeting groups who are seen to conflict with the interests and vision of the state as defined by the ruling political elite. It defines who is citizen and who is not, and ultimately, who is perceived as human and who is not.

Understanding State Crime

The concept of state crime for mass harm by states has been largely missing in the social science literature. This is beginning to change. In criminology, for example, we see a dominant focus on domestic crime, ‘ordinary’ individual acts of murder, rape, gang violence and so on. This has been expanded to a consideration of state violence, as we see in the work of Kauzlarich (1995), Barak (1991) and Ross (1995) for example, and Cunneen’s (2008) work on the role of the state in colonial violence. Smeulers and Roelofs (2008) have developed a framework of ‘supranational criminology’ designed to encompass international crimes, to which we can add earlier work such as George Yacoubian’s (1997) on including genocide within a criminological framework, Green and Ward’s (2004) work on state crime, and most recently Alex Alvarez’s (2009) work on genocide.

Political scientists and sociologists have worked closely on the concept of genocide and crimes of the state. R.J. Rummel proposed the term democide to denote killing by governments, demonstrating that there are different types of killing by the state (Rummel 1994). Alex Schmid examined the connections between repression, state terrorism and genocide (Schmid 1991). Barbara Harff and Ted Gurr have examined the nature of state harm against civilians, proposing the term ‘politicide’ (Harff & Gurr 1989). Zygmunt Bauman (1989) showed how the Holocaust must be considered as part of modernity rather than outside it. Irving Horowitz and Pieter Drost recognized the link between genocide and the state (Drost 1959a, 1959b; Horowitz 1976). Colin Tatz (2003) examined genocide as an example of race politics. Leo Kuper (1981) examined genocide as a political crime.

In international law we in fact have no concept of state crime. What we do have are references to state responsibility and state policy. The Rome Statute of the International Criminal Court in its definition of ‘Crimes against humanity’ notes the existence of a ‘State or organizational policy to commit such [an] attack’ [a widespread or systematic attack directed against any civilian population]. The Genocide Convention notes in relation to the use of the International Court of Justice as the organ for the settlement of disputes in interpretation, application or fulfilment of the Convention the ‘responsibility of the state for genocide’ (Article IX). The main international legal drafting body, the International Law Commission, has written of state responsibility, but fallen short of confirming the term ‘state crime’. In earlier discussions, the Commission discussed a ‘special regime of responsibility’ for ‘international crimes of the state’ (see Spinedi 1989), yet this debate has been shelved for now. Rather, international law considers genocide, crimes against humanity and war crimes as separate acts, with little explicit conceptualization of their state nature. This has led, as William Schabas has suggested, to a misplaced focus on lesser leaders in international criminal prosecutions (Schabas 2008) and, overall, I would suggest, a misunderstanding of the nature of these kinds of crimes.

In the social sciences, state crime has been defined variously as the act of governmental officials breaking laws, to the commission of systematic human rights violations including crimes of omission such as the denial of housing to the homeless, to the coercive or covert behavior of states against other states. It has also been termed ‘state terror’ or ‘state terrorism’. Michael Stohl and George Lopez define state terror generally as one aspect of governmental violence, suggesting that it is necessary to discern the different forms of state-directed violence, in particular oppression, repression and terrorism. State terrorism, in their definitio...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• List of illustrations
• Acknowledgements
• Introduction
• 1. Conceptualizing genocide and state crime
• 2. The toleration of harm: law and perpetration
• 3. Cutting off the old, envisaging the new: law and redress
• 4. Accountability and responsibility: addressing the state and institutions
• 5. Bringing us all together: law, reconstruction and reconciliation
• 6. Law and the constitution of state crime and genocide
• Bibliography
• Index