Abstracts – Genocide, State Crime and the Law: In the Name of the State
ISBN: 978-0-415-54381-1
Chapter one
Chapter one locates genocide and other forms of mass harm perpetrated by the state as state crime, crimes committed in the pursuit of nation building. It shows how these are systematic actions taken by the state or the emerging state against particular groups for their destruction or subjugation. It puts forward a schema of state crime that defines and differentiates acts of gross human rights violations perpetrated by the state, yet locates them all as ‘crimes against humanity’, violations of human rights on a sufficiently savage or systematic scale. It argues for a recognition of the particular parameters of this type of crime, and their differences, that will assist both in legal redress and in prevention.
Chapter two
Chapter two examines the use of law in the perpetration of state crime in seven core cases: the genocide of the Armenians by the Ottoman State 1915--1918, the Holocaust 1933--1945, Cambodia under the Khmer Rouge 1975--1979, apartheid South Africa 1948--1991, Ethiopia under Mengistu and the Dergue 1974--1991, the genocide in Rwanda 1994, and the conflict in the former Yugoslavia 1992--1994. It shows that while law is not used as a central tool in murder, perpetrator regimes define themselves peculiarly in relation to the law, and in fact law makes ‘allowable’ the perpetration of state crime.
Chapter three
Chapter three shows how law is used as a further tool of nation building and governance in the wake of state crime. Law is used to constitute the new society, to provide a clear break between the old and the new. Legal processes are designed to create new realities. These narratives of law however, in partnering the new state, may be overtaken by political change. The second part of the chapter, in a systematic overview of the seven core cases of state crime, shows a dominant focus on perpetrator and victim redress rather than a more future oriented broader societal redress through law.
Chapter four
Carried out ‘in the name of the state’, state crimes involve the use and transformation of a state structure and its institutions, both civil and state. Chapter four examines the attempts in legal redress for state crime to address these institutional parameters. It shows that whilewe may see individuals placed according to institutional affiliation, the institution itself, and the state, is rarely specifically addressed. While there may be an account of the harm that includes institutions and the state, there is no accountability. The chapter suggests the concept of civic liability to bring institutions, both state and non-state, into an overarching framework of liability for state crime, drawing on the duty of care owed by our core state and non-state institutions to its society.
Chapter five
Chapter five examines the role of law in reconstruction and reconciliation in the wake of state crime. It shows the necessary interdependence between institutional and societal reconstruction, and the conditions for law being transformative. It illustrates that the institutional design of legal processes and the path taken by a government in the wake of such crime do impact on societal reconstruction. However, this does not mean that legal proceedings create societal reconstruction or reconciliation. At best they establish spaces that open up these possibilities.
Chapter six
Chapter six considers the connections between law in perpetration, law in redress and law in prevention. It illustrates the critical power of acknowledgment of law, both in perpetration and in redress. Law is companion in determining who is citizen and who is protected. Yet in its still providing a space for injustice, in providing a record, and in stopping short of partnering extermination and killing, it may provide a space for future justice. Law is thus able to occupy a space between the past and the present. Law is companion, collaborator, and bystander. Law can also be preventer. In this we see the fundamental dichotomy within law itself, simply that between law as facilitator of harm, and law as facilitator of redress. Law can both enfranchise and disenfranchise, be a tool of empowerment as well as of exclusion.