It's been a long, bloody summer for the news. From Islamic State's campaign through Syria and Iraq, to the recent flare-up of Israel/Gaza hostilities, to the disturbing cycle of unrest and repression on the streets of Ferguson, Missouri, chaos and bloodshed are never far from our screens. For me, this summer has been a long series of recourses to criminal justice language as a means to understand what's going on in the world, whether in the news or just in my own head: Israel and Hamas's mutual allegations of war crimes against one another; Islamic State's brutal persecution of non-Sunni's as a crime against humanity.
But what about Ferguson? The repressive and militarised actions of the police (as I write, the National Guard are being brought in) are being broadly compared to the bad old days of the Civil Rights Movement, but the first analogy that came to my mind was apartheid.
I raise all of this not so much as a condemnation of IS, Israel, Hamas and/or the state of Missouri, as a rumination upon the rhetorical value of criminal labels. Because of the heinous nature of the acts they signify, crimes carry a considerable normative weight, and bring with them a long history of condemnation and rejection. Labels such as 'murder' and 'rape' carry considerable moral force, above and beyond similar but less-entrenched labels ('manslaughter' and 'assault by penetration', for instance). And the same is undoubtedly true of the international arena. International crimes, it has long been said, make the criminal hostes humani generis: the enemy of all humankind.
But whilst the rhetorical nature of criminal labels does tend to cause them to be bandied about rather loosely in public discourse, there's also a countervailing trend towards minimising the use of such language. The argument runs that, if we throw around labels like 'war criminal' and 'genocidaire' loosely, then we cheapen their essential meaning. If everything is genocide, then nothing is.
This can have profound consequences for the law, incidentally. It's probably why women cannot rape under English law. They can commit a crime with an equivalent maximum sentence, assault by penetration, but the idea of rape is so inherently phallocentric in the minds of English legislators that the idea of rape without penis is anathema. If we open up the idea of rape to female-perpetrated defilements, then we somehow loosen its meaning. It's the exact same opposition that the equal marriage campaign ran into, albeit with different shadings of institutional prejudice: if gays can marry then the institution of marriage becomes meaningless, because marriage has always been between man and woman. But is it similarly nonsensical argumentum ad antiquitatum to argue against applying labels like 'war crime' and 'apartheid' to individual acts of aggression and repression?
That's the nature of my issue regarding Ferguson in particular. Isolated from the shooting of Michael Brown by distance, culture, and a healthy dose of white privilege, but connected to it by the internet's outrage, it's easy to see both sides of the argument. On the one hand, the USA in general, and Missouri in particular, are not Apartheid South Africa. Totalitarian in their commitment to democracy and free-market capitalism, maybe, but not to (explicit) racial prejudice. It seems unfair to dismiss the state (and the States) as the equivalent of pre-Mandela South Africa, even after events like the shooting of Brown, or Trayvon Martin, or the one before that, or the one before that.
But then, that's the counterpoint, isn't it? This keeps happening, across the supposedly post-Civil Rights nations of the West - remember what sparked the 2011 riots across the UK? Racial segregation is kept alive and well by socioeconomic inequality and deeply-ingrained institutional racism. One does not need a criminal State to see State crimes cropping up. One does not need an apartheid regime to see acts of segregation. So how are we to determine when it's appropriate to use narrow legal language in broader political discussion?
Ultimately, as ever, the answer probably lies somewhere between the two extremes of absolute fidelity to the narrow legal definitions of crimes, and absolute pursuit of their broader rhetorical value. In his excellent book, The Idea of Justice (2010), the economist-philosopher Amartya Sen rejects the idea of 'transcendentalism' about ideals like justice. It is utopian to imagine the perfectly just society. We can never get there. But that shouldn't stop us from using utopia as a benchmark with which to compare systems, and to adopt policies and approaches that take us closer to it. I think a similar point can be made about the language of criminal justice.
We should always be restrained about using legal terms of art in non-legal discussions. It can colour discourse and lead to manifest injustices, particularly when the pursuit of justice is subject to the norms of public discourse. Consider the bungling of the investigation of (baffling) national treasure Cliff Richard - the concerns that have been raised over the due process of his investigation for child sex offences by the leaking of details of the searching of his home.
But, at the same time, we should be aware of atrocity, even if it is a one-off, even if it falls below the legal threshold. A state approaching apartheid is still awful, despite the fact that it breaks no (international) laws. Ferguson is still shocking and disturbing, not least because it could quite easily happen in my own country. The flipside of the narrowness of legal definitions is the mythological character with which they imbue offences. I could never be a murderer, a sex offender, a genocidaire, because I live in a stable, ordered, and fair society. My state is not apartheid, so it must never problematically segregate. False absolutism favours blinkered vision and represses dissent. And that, as in Ferguson, can lead to palpable inhumanity.
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