The master’s tools: can supranational law confront crimes of powerful states?

Abstract

International judicial efforts to confront state crime have grown significantly in the last 20 years. Building on precedents established by the Nuremberg and Tokyo war crimes trials, in the 1990s the United Nations (UN) began using special tribunals to adjudicate claims of genocide, war crimes and crimes against humanity in the former Yugoslavia, Rwanda, Sierra Leone and Lebanon. In 2002, the UN took a further step by inaugurating the International Criminal Court (ICC) as a permanent, independent global court with jurisdiction over these crimes as defined by the Rome Statute (UN 1998). The goals of this emergent supranational judicial system are to deny impunity to state actors suspected of, in the words of the Rome Statute, the ‘most serious crimes of concern to the international community’ and to deter similar crimes in other nations (Sands 2003). The existence of this Court is no small matter because it challenges the core image, and possibly the substance, of the Westphalian state – internal sovereignty (Krasner 1996). Have we finally picked the lock behind which states have long inflicted grievous social injuries with impunity? Before determining the answer to this question, I suggest we give some consideration to Audre Lorde’s (1984: 1) observation that ‘the master’s tools will never dismantle the master’s house’. More specifically, can a legal apparatus designed by powerful capitalist states address the social harms, particularly the systemic social harms, committed by those states? I suggest that the current tendencies of supranational law may help remodel the master’s house, creating a bit more room for a few who are now outside it. This, however, will still leave intact the basic structure that guarantees relative immunity for powerful states, and the targets of those states exposed to the chilly winds of relative disregard for their human rights. If this is the case, what new tools might help us build a new house, a new world, in which systemic crimes of powerful capitalist states, not just the crimes associated with war by weak states or extreme internal brutality, are confronted by an effective legal apparatus? I will approach these questions outlined above from three vantage points: first, the conceptual challenges state crime poses for criminology; second, the relationship between state power and state criminality as reflected in current supranational law; and, third, the current necropolitics of internationalimmigration control in the United States (US) as one example of the limits of the master’s tools to confront state crime committed by powerful nations. My concern with the third issue is more than academic. Since 2002, my research and work as a public criminologist has been focused on immigrationrelated conflicts in Arizona. These efforts have included ongoing ethnographic study of both anti-immigration and immigration rights organizations in the state and serving as a board member for the largest membership-based immigration rights non-government organization in Arizona. My role as an ‘engaged observer’ (Sanford et al. 2006) has given me a first-hand understanding of the challenge of confronting the state crimes of one of the world’s most powerful nations. I contend that newly emerged supranational judicial bodies suffer many of the same limitations as do national courts when it comes to confronting the systemic harms initiated or facilitated by powerful states. Since the rise of the modern state 10,000 years ago, law in all its forms has been indexed to the worldview of, and sometimes directly according to, the interests of dominant class factions in those states (Turk 1969; Chambliss and Siedman 1971; Michalowski 1985). Insofar as the systemic harms characteristic of any particular social formation are usually the collateral damage of the interests and/or worldview of those with the power to make law, it is predictable that many, if not most, of these harms will not only avoid being defined as crimes, but they will fall outside the understanding of wrongfulness. I am not suggesting a mechanistic relationship between dominant interests and legal outcomes. While instrumentalist (Quinney 1977) and structuralist (Althusser 1971) conceptions of the law helped fracture the hegemonic vision of law as social consensus, they left a number of sociological questions unanswered. Key concerns relate to how dominant consciousness becomes broadly accepted legal consciousness (Balbus 1977), how repressive social ideologies and practices become broadly normative (Foucault 1977) and how middling classes in modern capitalist societies come to align with elites in a shared project of repressing the most disadvantaged (Evans 2006; Frank 2005). Given the historic dominance of elites in making law and shaping legal consciousness, I ground my analysis here on two propositions. First, insofar as contemporary institutions of supranational law operate largely according to conceptions of individualism, property rights and human rights consistent with the dominant ideology of the world’s most powerful capitalist states, the legal consciousness and legal mechanisms that serve as the foundation for supranational law are ill equipped to address state crimes other than egregious acts that mimic routine crimes of greed or violence that can be blamed on individual wrongdoers. That is, supranational law, like national laws, is limited in its ability to address organizational deviance and the systemic harms that flow from it. Second, even where powerful nations are held responsible for state crimes under international law, the enforcement mechanisms of the current supranational justice system are weak relative to powerful states. Certainly, international courts may occasionally condemn the wrongful actions of powerful states. Thosestates, however, are relatively free to ignore these condemnations. A case in point was the ability of the US to ignore the ruling of the International Court of Justice that the US violated international law when it mined Nicaragua’s main harbour during the Contra war (ICJ 1986). The historic record suggests that powerful nations are relatively free from condemnation of their harmful acts, at least by formal institutions of supranational justice. For instance, the international community did little in the 1970s and 1980s as the US facilitated the overthrow of governments and promoted military dictatorships in a number of countries in Central and South America at a cost of hundreds of thousands of civilian deaths. While it is arguable that the US violated international law repeatedly in Latin America during these decades, the consequences were nil. Examining a more contemporary context, as I will show, beginning in 2005, right-wing organizations in the US gave birth to the idea of ‘attrition through enforcement’, forming an increasingly successful political movement aimed at ethnically cleansing individual states of Latino immigrants under the guise of enforcing immigration law. Although attrition through enforcement bears important resemblances to the crime of ethnic cleansing, the architects and enforcers of this policy have little to fear from supranational institutions of justice. In short, the current system of supranational justice is ill equipped to confront the systemic crimes of powerful states. To do so effectively will require a fundamental redesign of the existing system for global governance which removes impunity from powerful states and their leaders. The existing framework of human rights laws and conventions may serve as a foundation for such a rethinking. However, the current system for ensuring that all states are held to these laws and conventions leaves much to be desired.