Crime. war and security

This rather rambling piece is very much work in progress. Please do not quote it without my express permission. It started of as a couple of lectures that I gave at the University of Brighton, UK in November 2006. Some of it will, once I have got the arguments in a much more coherent shape, eventually form part of a book I am writing. In the meantime it will probably go through a number of revisions and the text will be subject to frequent modification.

Over the last fifteen years questions concerning the relationship between crime and warfare have gradually become more important. Paradoxically this has occurred with the ending of the cold war. The conflicts in former Yugoslavia prompted some new thinking about what criminologists might have to say about war and its relation to criminality and criminal justice. Ruth Jamieson in particular attempted to establish a 'new criminology of war' adequate to the new forms of conflict emerging during the period (Jamieson 1998). But the events of 9/11 and the subsequent invasions of Iraq and Afghanistan have renewed the urgency of how criminology should engage with war. There has been, for example, a considerable debate on whether terrorism should be viewed and responded to as warfare or as crime.

War and politics

There have, of course, been those calling for what we might call the conceptual criminalisation of war. That is to say that we should study war as a form of crime, as criminal violence. Such a position can be detected in the well known article by Herman and Julia Schwendinger (1975) which attempted to emancipate criminology, as regards its legitimate object of study, from a dependence on criminal law. The Schwendingers argued that radical criminologists should reject existing criminal law in favour of a wider definition of crime as violation of basic human rights which:

"are differentiated because their fulfilment is absolutely essential to the realisation of a great number of values… (hence)… the right to racial, sexual and economic equality. The abrogation of these rights certainly limits the individual's choice to fulfil himself in many spheres of life. These rights therefore, are basic because there is so much at stake in their fulfilment. It can be stated… that individuals who deny these rights to others are criminal. Likewise social relationships and social systems which regularly cause the abrogation of these rights are also criminal. If the terms imperialism, racism, sexism and poverty are abbreviated signs for theories of social relationships or social systems which cause the systematic abrogation of basic rights, then imperialism, racism, sexism and poverty can be called crimes according to the logic of our argument." (Schwendinger and Schwendinger 1975: 136-7)

Although war is not mentioned by name much warfare can easily included as a violation of basic human rights in the sense intended, and radical criminologists who derive their focus not from criminal law per se but from a wider concept of human rights violations, can legitimately study war as a variety of such violation. More recently Vincenzo Ruggiero has reiterated this theme by issuing "a brief thematic manifesto" which attempts to gather resources for a criminal indictment of war from various strands of criminological theory (Ruggiero 2005: 255). Issues such as the nature of 'just war' or legitimate defence against aggression necessarily complicate this picture.

There are problems, however, with simply absorbing war into the domain of criminology in this way, just as there were practical problems encountered by philosophers, jurists and political movements way back to the eighteenth century who wanted to practically outlaw warfare. From the academic point of view it is all very well to say war should be treated as a form of criminal violence but to do so in no way eliminates the particular characteristics of warfare and its causes and conduct which distinguish it from other forms of criminal violence. There are thriving academic disciplines of International Relations and War Studies which have established themselves precisely to deal with these specificities. And their starting point is that war is to be dealt with as a form of political relations between states. Most people have heard of the definition of war by the nineteenth century German military theorist Carl von Clausewitz as 'the continuation of politics by other means.' More recently, incidently, Michel Foucault has turned this on its head and defined politics as the 'continuation of war by other means'. (Foucault 1997: 16) I don't have time to go into either of these definitions here but simply to note that any attempt to treating war as a variant of 'crime' has to establish itself against other approaches which, on the face of it, seem more plausible.

One reason they appear more plausible is that classic warfare, that is, armed conflict between sovereign nation states, not only has political aims but is at the same time both a form of violence and an attempt to suppress violence. That is to say that the aim of war is surrender or ceasefire on terms understandable by reference to the political aims of the contending parties. In such a situation who is the victim and who is the offender is an essentially political judgement. War is both 'crime' and 'criminal justice' merged into a single process. And of course all the participants will claim legitimacy for their actions as precisely a form of justice, as the righting of wrongs, as defence against aggression. The analogy is less between war and criminality than between war and the type of feuding and vendetta that characterised the attempt to settle conflicts before the emergence of the modern territorial state with its monopoly of legitimate violence and legal process. Indeed the relations between national states can be regarded as a continuation of those very traditions of feuding and vendetta which modernity expelled from the internal life of the territorial state. In this state of relative anarchy (Bull 1977) the practical obstacle to the criminalisation of war has always been the notable absence of a third party more powerful than either of the warring states which could act as a sort of global criminal justice system and suppress the conflict, decide who was the victim and who was the offender and place the latter on trial. This has been the stumbling block to all attempts to actually dispense with warfare as an instrument in the conduct of relations between sovereign states. There were of course such attempts but they always rested in the last analysis on an agreement between states not to go to war. After the First World War the League of Nations was established and members agreed that war should be avoided as a method for settling conflicts between states. This theme was consolidated in the Kellogg-Briand Pact signed in 1928. Neither the League nor the Pact survived as an effective restraint on recourse to war. They failed because at the end of the day it was in the political interests of nation states to go to war and there was no effective force capable of stopping them. The same might be said of the 1945 Charter of the United Nations which restates the illegitimacy of recourse to violence by states as a means to settle disputes.

If we start from the type of large scale warfare that engulfed Europe and large parts of the globe in 1914-18 and 1939-45 then there are numerous obvious procedural ways in which warfare and criminal justice depart fundamentally. Modern industrialised warfare inflicts punishment on entire populations while criminal justice replaces the collective punishment of populations with the indictment of individuals. Conflicts are broken down into actions between individuals and culpability is settled by the trial before judge and jury. The careful accumulation of evidence and its examination in the court trial replaces force of arms, apart from any coercion necessary to bring the parties before the court. The aim of criminal justice is to ascertain, by various procedural methods of proof the correct identity of the offender prior to their punishment. This gives a space in which can emerge (though by no means inevitably) the traditions of due process: the presumption of innocence, legal proof beyond reasonable doubt, the right to challenge all evidence, only the convicted can be punished etc.. Warfare, by contrast, concatenates all these stages into a single process of organised violence. The identity of the military enemy is not an issue, it is the annihilation of his power and capacity to wage war which is paramount. Although citizens within the territorial state hand over their right to wage war to the state (just as they hand over their right to pursue and punish criminals) warfare as a relation between states is one in which conflict isfought out directly between the belligerents rather than handed over to a third party sitting above the disputants as judge and court. There is no real distinction between investigation, prosecution and punishment. It all depends on who wins the war and who is in a position to construct its history and causes. Warfare is precisely what, within states, criminal justice aims to suppress. It is 'taking the law into your own hands.' When a state wages war, and I am deliberately locating this discussion in the era of industrialised total war whose demise and redundancy we hear so much about, it encounters its own image in the form of another state with its own society and military apparatus. The contrast with criminal justice could not be starker.

Criminal justice and warfare therefore involve very different forms of the mobilisation of populations. The type of mobilisation which characterises crime control I characterised (Lea 2002) as the social relations of crime control, an essentially passive process in which, to paraphrase Nils Christie (1977) 'our conflicts' are handed over to become 'their property' ('their' referring to the criminal justice agencies). Handing the problem over to the state, the police in the first instance, and then being prepared to give information, appear as witnesses at the trial and to otherwise assist the agencies of criminal justice is a passive process. The crowd at the courthouse door, or in the public gallery, demanding 'justice' is nowadays regarded as an impertinent interference with due process of law. The citizen must let the criminal justice agencies get on with the job and take care not to interfere with their work. It is thus a negative mobilisation combining positive injunctions (call the police, give them information, appear in court as a witness) with negative injunctions (do not take the law into your own hands, stand back and let the criminal justice system do its job)

The passivity of the general population towards criminal justice is replicated by the characteristics of detachment and orderliness required of criminal justice personnel. Restraint as a form of 'civilising process' in the sense documented by Norbert Elias (1994) is characteristic of the key activities of criminal justice: the careful gathering of evidence, impartial deductive inference, and a preparedness to suspend judgement concerning the guilt of the accused until the final moment of cumulative proof 'beyond reasonable doubt', are the forms of restraint generally required of criminal justice personnel associated with the trial process. Meanwhile street policing is, in the traditional model of 'consensus policing' a restrained use of minimal force as a last resort in which the police learned to compromise; turning a blind eye to all manner of minor misdemeanours in return for community tolerance and co-operation in tackling more serious offences. (Lea and Young 1984, Lea 2002). Thus, by contrast with warfare the main resources of policing "are high order social skills, persuasive argument and calm intervention into undesirable activities and conflicts in dealing with situations that others find difficult and disgusting." (Steinert 2003: 271) In such contexts martial spirit is not always welcome. It frequently only makes the situation worse. In some cases, of course, more military approaches are explicitly developed as with specialised police units tasked with the apprehension of well armed offenders and paramilitary gendarmeries whose main orientation is the suppression of public disorder. (Lutterbeck 2004)

In modern total war, of the type that came to its final development, and many would say final episode, in the Second World War, the mobilisation of the population is quite different to that which characterises the social relations of crime control. It is an active mobilisation, frequently fired by nationalist sentiments and even xenophobia which "… requires all of us to respond and to contribute. War forges the bond of community and acceptance of (political) leadership like nothing else (or very little: mainly a major natural disaster) does." (Steinert 2003: 266-267) Martial values and aggression have a definite place. There is always a danger of the reversal of 'civilising processes' of restraint (Elias 1994) in ensuring the correct mix of restraint necessary for co-ordinating a modern industrial bureaucratic society, including its military apparatus (Collins 1974), and the 'fighting spirit' and 'killing mood' (Cohen 2001, Bourke 1999) necessary for the conduct of battle. In wartime the citizen hands over to the state the right to bear arms and then becomes re-mobilised by the state as the soldier in a mass army. Unlike with a police force, during the height of modern total war a large proportion of the male population may be under arms. But civilians are also mobilised in a positive sense in two ways. Firstly, the entire national economy is reorganised around the war effort. This is accompanied by numerous injunctions on civilians to make a special devotion to the war effort. Working long hours, reducing consumption, concentrating on the production of items essential to the war effort. A special and exceptional militarisation takes over the regulation and government of population. The civilian citizen, rather than being enjoined to stand back and let the authorities get on with the job will, on the contrary, be required to take on all manner of 'voluntary' duties such as air raid warden, part time fire-fighter etc., as well as facing exhortations to increase the intensity of labour in the interests of victory.

But an additional aspect of these duties will be to become the 'eyes and ears' of the authorities, on the lookout for spies, people talking too openly about matters which may be of use to the enemy, or in a way which may undermine the morale of civilians and soldiers, individuals illegally avoiding military service or violating war-time rationing provisions etc. Superimposed upon the normal duties of the citizen to report a crime to the police are, then, a collection of proactive duties to report a much wider spectrum of activities than those normally thought of as crime but which arouse suspicion and are perceived as undermining the war effort. Warfare thus traditionally requires an altogether more positive and potentially authoritarian mobilisation in which the respect for civil rights and due process of law which we associate with criminal justice may well be suspended or seriously modified 'for the duration of hostilities'. The wholesale mobilisation of society and the economy required by the two World Wars was accompanied by various inroads into civil liberties. Special legislation, directed against behaviour deemed by the state as likely to undermine in any way the total mobilisation and enthusiasm of the population for the government's war project, is to be expected given the nature of this type of war. The state may assume the right to proceed against any individual suspected of any activity thought likely to impede mobilisation in any way. Such a policy might well involve the suspension of fundamental liberties such as Habeas Corpus. As part of such a regime entire social groups (e.g. immigrant communities originally from enemy states or of the same ethnicity or religion as the enemy) may find themselves subject to pre-emptive surveillance or criminalisation, internment and the forfeiture of assets. Individuals may be hauled before special tribunals on the basis of hearsay evidence and face imprisonment. During the Second World War, in the United States 120,000 citizens of Japanese descent were interned in detention camps. Meanwhile in the UK 27,000 people from Germany and Italy were interned under Defence Regulation 18b which provided that the Home Secretary may order a person to be detained “if he has reasonable cause to believe” the person to be of hostile origin or associations. The courts meantime "...did virtually nothing for the detainees, either to secure their liberty, to preserve what rights they did possess under the regulation, to scrutinise the legality of Home Office action, or to provide compensation when matters went wrong. " (Simpson 1993: 418-9. see also Stammers 1983) The suspension of civil liberties in wartime was generally tolerated on the basis that such a state of affairs is essentially short term -- warfare is episodic rather than permanent -- and thus restrictions on liberties 'for the duration of hostilities' is not normally seen as a fundamental crisis of the forms of legality in the democratic state. It is simply a temporary state of exception.

This brings us to the final point of contrast between war and crime control. Warfare is episodic. Wars, it is true, have often lasted a long time. We read about the 'Hundred Years War' and the 'Thirty Years War' in European history. But even in these long drawn out conflicts the main focus of activities was the battle. Battles tended to be episodic and take place once in a while. True, the First and Second World Wars involved a permanent mobilisation of most sections of the population. But this, again, was four and five years respectively. Criminal justice, by contrast is a continuous process. It is part of the normal network of institutions which reproduce and regulate social processes. Criminality in modern society is a marginal but normal social event taking place, in one form or another, continuously. There is no sense in which crime only occurs from time to time or in which criminal justice agencies are 'stood down' and only activated in certain situations. This distinction is important because if it becomes blurred, if crime control starts to take on the features of warfare, then there are obviously important consequences for civil liberties: the state of exception becomes norm.

Crime in wartime

The contrast between criminal justice and warfare discussed so far makes most sense in terms of the type of war which came to a head in the two World Wars of 1914-18 and 1939-45. (see Shaw 1988) These industrialised 'total' wars for which the whole of society was mobilised, the majority of the population being either under arms, or diverted to other supporting roles in the 'war effort' resulted in horrendous carnage. During the period of these wars criminologists such as Willem Bonger during the First World War Herman Mannheim during the Second World War, concerned themselves mainly with the criminogenic effects of war. On the one hand such factors as the breakdown in family and community life due to mass mobilisation, conscription into the armed forces, and the devastation caused by bombing, disrupted both legal and social control regulating levels of crime. On the other hand shortages and the imposition of rationing, enabled the expansion of criminal opportunities in illegal economies and 'black markets'. (Bonger 1916, Mannheim 1941, 1946, see also Thomas 2003)

There are other aspects of the First and Second World Wars which are of criminological interest. One of them is the question of war crime. There has accumulated a considerable body of law in the form of treaties, conventions and protocols, to which most nation states have given their signatures, which aim to regulate the conduct of war. The most important of these are the Hague Convention of 1907 and the various subsequent Geneva Protocols and Conventions. By attempting to outlaw various practices in warfare, such as the deployment of chemical and biological weapons, violence against non-combatant civilians and by regulating the treatment of refugees, the wounded and prisoners of war, these conventions attempt to keep warfare within certain boundaries. There are of course, as with attempts to outlaw war as such, practical problems of enforcement. Often action against violations is carried out retrospectively by the victorious parties to the conflict. This runs the risk of 'victors justice' in which only the crimes of the defeated will be dealt with while those of the victorious will be ignored. But apart from those problems the effect of such bodies of legislation is to legitimise the practice of war as such. They recognise warfare as a 'continuation of politics by other means' in the relations between sovereign states, and seek to regulate them in much the same way as domestic criminal law may outlaw unsafe or dubious business practices without in any way undermining the legitimacy of business as such. There can therefore be no precise equivalent in domestic criminal justice to the idea of war crime. There can be no such thing as a legitimately conducted crime as crime itself plays no role in the control of crime. The nearest equivalent is perhaps the idea of legitimate self defence against an attacker using 'reasonable force' where the use of excessive force, even in self defence, would itself constitute a criminal offence. Also, there are 'miscarriages of justice' and criminal activity by state and criminal justice agencies themselves, ranging from state sponsored terrorism to police collusion with criminals. (see Chambliss 1989)

As regards war crimes during the Second World War of course everything shades into insignificance compared with the crimes against humanity of the Nazi holocaust. These were really matters of deliberate political policy rather than warfare as such. That is to say that they would most likely have occurred irrespective of whether Germany, under the Nazi regime, was at war and the category of 'crimes against humanity' is not therefore restricted to activities under war conditions. Turning to crimes committed in the conduct of war (for which the term 'war crime' is generally reserved), such activities require a specialised criminology, attuned to the findings of the psychology and sociology of military subcultures as well as political exigencies. They may also relate to the decisions of planners and political elites taken far from the actual battlefield. From this latter point of view allied action during the Second World War such as mass bombing of German cities can arguably be considered war crimes (Grayling 2006). The study of war crimes by soldiers in the theatre of battle or rear areas should be a very important area of criminology, extending well into the modern period through such atrocities as the My Lai massacre in Vietnam and the crimes committed during the recent conflicts in the Balkans (Jamieson 1998) and the current occupation of Iraq. The study of battlefield crime during the two World Wars was a difficult endeavour both due the hazards of criminal investigation under battle conditions and because the chaos of battle combined with the need for solidarity and cohesion in military forces in action provides numerous opportunities for the covering up of such incidents. In more recent conflicts the much expanded role of the media and the activities of international human rights bodies such as Amnesty International and Human Rights Watch has done much to make warfare highly visible to a global public and this has assisted in the detection and prosecution of battlefield crimes.

The changing nature of war

But since the end of the Second World War, and particularly since the end of the Cold War period, the nature of warfare appears to have changed radically. As regards conventional forms of war, "without a single exception, what large-scale interstate wars have taken place since 1945 have been wages either between or against third and fourth rate military powers." (van Creveld 2006: 332) The main example of the former is the Iran-Iraq war of 1980-88 was in many ways a grisly re-enactment of the First World War (with trench warfare, use of gas etc.) which lasted twice as long. The main examples of the latter are of course the two US-led wars against Iraq. There are, meanwhile, a number of factors which, until recently at least, appeared to make the advance of a criminological and criminal justice perspective on war in general increasingly plausible.

Firstly there has been a general decline of militarism. The after-effects of the devastation of the Second World War gave a boost to the old dream of outlawing war itself rather than simply outlawing certain practices within war. In 1945 the Charter of the new United Nations stipulated in article 2 paragraph 4 that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." The consequence of this has been of course less an end of war but rather that states have tended to invoke the right of self-defence or the right of collective defence when using military action. In theory this is only legitimate until the UN is able to organise the appropriate intervention to stop the conflict. But as with the League of Nations before it the UN rests on the shoulders of its participating member states and their agreement to abide by its decisions.

Meanwhile other social and global changes were facilitating the actual criminalisation of war. At the beginning of the 1990s Martin Shaw (1991) identified the emergence in the West of a post-military society in which military elites and values were becoming marginalised from civil society and politics and themselves taking on a more civilianised character . This resulted partly from changes in the military itself -- nuclear technology making war between industrial states impossible, and the transition from mass conscript armies to small, technology-oriented professional forces -- and partly in cultural changes beginning in the 1950s and 60s -- the decline of mass nationalism and organised religion. The rise of a social democratic welfare society undermined the willingness of large numbers of working class soldiers to follow an aristocratic military elite unquestioningly into battle. At the same time the growth of individualism and consumer culture undermined the type of nationalist social mobilisation associated with classic total warfare. Militarism, Shaw argued, was increasingly replaced by an 'armament culture'; a type of mass media culture similar to what Michael Mann (1987, 1988) termed 'spectator sport' militarism in which Western populations would pragmatically accept the necessity for warfare as they watched news media constructions of wars in distant parts of the global South, much as they might watch media footage of police operations. The military themselves according to Mann, had retreated into a technicist 'deterrence-science' militarism of war games and computer simulations which had little in the way of mobilisation effects for the population in general. Symptomatic was media portrayal of a short but worthwhile military career, less in terms of service to 'Queen and Country' than in terms of transferability to civilian life of technical or leadership skills. Such changes have important consequences. One of the consequences, traditionally celebrated by conservatives, of mass conscription militarism combined with a high public profile and status for the military was the transmission of military values of discipline and respect for authority into civil society (see Vagts 1959, Huntingdon 1981). In a post-military society the flow is, if anything, in the other direction. I shall mention some consequences of this presently.

A second set of general processes which may facilitate the criminalisation of war concern globalisation. There are numerous dimensions of globalisation and they by no means all point in the same direction. As far as warfare is concerned it can easily be argued that globalisation, in the form of a massive increase in the interconnectedness and interdependence of the economies and financial systems of territorial states, has rendered inter-state warfare highly dysfunctional. War between advanced industrialised states is today unthinkable, it is argued, not just because of the consequences of urban nuclear warfare but because of the interconnectedness of the global economy and therefore the greater disruption to economic processes which war would entail. This global interconnectedness and interdependence established at the levels of both governance and culture has, it is argued, undermined the distinction between the national and international. In a well known radical thesis on the nature of the new global configuration Michael Hardt and Toni Negri argued that old style imperialist competition between nation states which "served the needs and furthered the interests of capital in its phase of global conquest" has been undermined by the world market which "requires a smooth space of uncoded and deterritorialized flows… The full realization of the world market is necessarily the end of imperialism." (Hardt and Negri 2000: 333) As part of such a process new forms of globalised non-state governance, regulation and dispute settlement have proliferated in the economic and financial spheres. (Braithwaite and Drahos 2000) mirroring the growth of informal and privatised non-state governance of security at the level of cities and regions. (Shearing 2001, Shearing and Johnston 2003, Shearing 2005). Thus no states have an interest in war, the majority of states have an interest in quickly repressing any war that does break out. In such a scenario UN sanctioned military intervention to stop a conflict or maintain a fragile ceasefire, does indeed begin to look more like a variety of policing.

Meanwhile globalisation of communication systems brings instant public awareness of death and genocide combined with the fact that many forms of conflict in localised small wars explicitly target civilian populations rather than military forces (Kaldor 1999, 2003). These have created a strong popular pressure for a human rights-based criminalisation of such conflicts. There has been a growth, since the end of the Second World War of a body of conventions, agreements and UN resolutions which elaborate and consolidate the principles laid down in the UN Charter. The judgements of the Nuremberg and Tokyo war crimes tribunals, the 1948 Convention against genocide, the 1979 Convention prohibiting hostage-taking and the 1984 Convention against torture, all served to lay the foundations for an international human rights law which provides the basis for the explicit criminalisation of large scale state violence. By far the most important consequence of this development is that it now seems to be regarded as legitimate (for the UN or bodies acting under its auspices) to intervene in the internal affairs of sovereign states to prevent or punish violations of human rights. Traditional international law stopped at the frontiers of the sovereign territorial state. But human rights do not. This is notwithstanding the 1965 UN Declaration on Inadmissibility of Intervention in Domestic Affairs of States and Protection of their Independence and Sovereignty which condemned intervention by individual states 'for any reason whatsoever'. The development, mentioned above, of global media coverage of conflicts combined with the increasing intervention by outside bodies such as the Red Cross, and other Non Governmental Organisations (NGOs) together with the UN prepared the ground for the criminalisation of such conflicts as violations of global peace.

Doctrines of globally extensive human rights meanwhile impact on militarism, impeding the type of aggression and denial of the humanity of the enemy associated with classic warfare. Thus the old idea of the external enemy as threatening the integrity of the nation state has been internalised as the threat to human rights and the stability of the global society. Military action under the auspices of the UN, backed by the ethics of universal human rights rather than 'reasons of state' can now be legitimised as police action to deal with disturbance. The result is that "war is reduced to the status of police action, and on the other, the new power that can legitimately exercise ethical functions through war is sacralized." (Hardt and Negri 2000: 12-13) It is now regarded as legitimate to interfere in the internal affairs of another state to remedy human rights violations. (Chandler 2002, 2006)

This leads us to the most important development: the apparently changed nature of warfare itself. The relative declining inter-state warfare appears to have been superseded by an increase, largely, but not exclusively, located in the global South (Jung 2003), of various types of irregular warfare. These 'new wars' in such regions as Yugoslavia, Chechnya, Somalia, Rwanda, Sierra Leone, Congo, Sudan, involve combinations of civil war, border and ethnic conflicts in areas of weak central state control and conflicts involving a variety of 'non-state actors'. In her discussion based on the Balkan conflicts of the 1990s, Mary Kaldor attempted to clarify the nature of these new conflicts. Firstly, they were fought not by the military forces of rival nation states but, precisely because they frequently occurred in the context of the break-up of such states, by a "disparate range of different types of groups such as paramilitary units, local warlords, criminal gangs, police forces, mercenary groups and also regular armies including breakaway units of regular armies." (Kaldor 1999: 8 see also Holsti 1996, van Creveld 1991). Secondly, that these forms of warfare fulfilled no functions at all as regards national mobilisation and cohesion. On the contrary, they brought only disruption in the form of homeless refugees, the destabilisation of the economy and the political system, conflict spilling over into neighbouring states. Thirdly, they were funded less by national taxation and any 'war effort' than through the contributions of diaspora communities, drugs trading and the illegal small arms markets. Such agglomerations are much easier to criminalise even if the source of that criminalisation comes from external intervention. Fourthly, intervention in these conflicts under NATO and UN auspices was usually restricted to emergency aid and peacekeeping which, rather than requiring national mobilisation, "could be reconceptualised as cosmopolitan law enforcement. Since the new wars are, in a sense, a mixture of war, crime and human rights violations, so the agents of cosmopolitan law enforcement have to be a mixture of soldiers and policemen." (Kaldor 1999: 11) Finally, a significant target of armed action in such wars is civilian populations, as for example, with 'ethnic cleansing', rather than other opposing military forces. In such conflicts, which in many cases approach genocidal proportions (Shaw 2003), the distinction between warfare and war crime becomes blurred or breaks down altogether. The distinction between official state military forces and non-combatant civilians only makes sense where war is being conducted by nation states whose boundaries and whose constituent populations are not in question. Once the boundaries of the state are in question, and when that state is seen as the expression of an ethnic identity, then the movement of populations becomes a war aim. Once that happens, we are talking about forced expulsion of civilian populations from a particular region, from places they had lived in for generations, and entirely at peace with their neighbours of a different religion or ethnicity, to make way for a new ethnically pure state. This 'ethnic cleansing' can take violent and sadistic forms such as organised rape and, finally, genocide. These so-called 'wars' become in fact orgies of armed racial and ethnic violence. It is possible to regard them and to treat them as outbursts of criminality in a way in which old fashioned wars between nation states fought by official military forces cannot be. These conflicts are on the increase.

Such conflicts of course have criminogenic effects. The chaos and breakdown of community cohesion, law and order and economic stability in the conflict zone is an obvious consequence. But there are two further aspects of such conflicts which concern, rather than the criminogenic effects of war or the committing of war crimes as a form of deviance during the conduct of the war, the criminality that is an integral part of the conflict. Firstly, war crime tends to become itself a weapon of war. This was the background to Ruth Jamieson's call (Jamieson 1998), arising out of the wars in former Yugoslavia, for a new 'criminology of war' adequate to the new forms of warfare and taking account of the central role of gender relations -- such as the use of organised mass rape -- as a war weapon (see also Nicolic-Ristanovic 1998). By stressing the role of rape as a weapon of war itself, Jamieson and others were acknowledging the outdated nature of the paradigm which sought to investigate the criminogenic effects of war and implicitly replacing it with a perspective acknowledging the criminogenic character of war, or at the very least of the type of war exemplified by the conflict in the Balkans. The old paradigm retained, and indeed reinforced, the distinction between war and crime. Wars are situations in which a number of criminogenic forces, economic, social, psychological may be intensified but they are not, in and of themselves, criminal activities. The new paradigm, by contrast, emphasises the shifting and blurred boundaries between warfare as such and various forms of criminality. It is a simple step to regarding war itself as a form of criminal violence. As the distinction between war as such and the particular conduct of war through large scale violence against unarmed people becomes blurred, so criminalisation is enabled to gain a more substantial foothold as a mode of response.

Globalisation, it turns out, has a dark side. Behind the growing interconnection between countries and economies that renders warfare irrational as a 'continuation of politics by other means', the dark side is that such peaceful integration is mainly confined to the rich economies of the global North. For the world as a whole, the global diffusion of western media, consumer styles and values, by heightening a sense of relative deprivation in poor countries combine with the marked increase in inequalities of income and opportunity both within and between states (Milovanovic 2003; Nassar 2004; UNDP 2005, Hoogvelt 2006), to become a potent force for instability. This is a key factor in the outbreak of new wars. Nevertheless, it can be argued that the nature of these conflicts assists their effective assimilation into criminal justice and dispute resolution paradigms and this is what counts as far as the issue of criminalisation of war is concerned. What is important is that the old dualism of warfare as both violent conflict and the main form of response to violence appeared to have been resolved. Military action as UN peacekeeping is police work not just in the sense that it frequently requires policing and conflict-diffusion skills in addition to traditional military resources but also in the sense that it is on behalf of a higher authority, intervening in violence to put a stop to it. The higher authority is constituted by the 'international community' of states, institutions, intergovernmental and NGO, under the umbrella of a legitimacy provided by the UN and the doctrine of human rights.

It is not surprising therefore that, on the surface at least, there is much progress in the very recent period towards international criminal justice. After the wars in Yugoslavia a special International Criminal Tribunal on Yugoslavia (ICTY) was set up in the Hague to try individuals who had, allegedly been responsible for crimes against humanity. The former Serbian leader, Slobodan Milosevic, was handed over to the tribunal and tried for crimes committed while he was head of state. Although other wanted alleged war criminals have yet to be apprehended, the argument is that the ability of the 'international community' to intervene in the affairs of sovereign states and drag their leaders in front of international courts to face criminal trials for acts committed while they were heads of state or in leading political or military positions establishes the precedent that warfare, except in the form of UN sanctioned police action, has gone a considerable way down the road towards being treated as a form of crime. The culmination of this process of setting up the machinery of international criminal justice was the establishment of the International Criminal Court (ICC) in 2002 to try cases involving genocide, crimes against humanity, and war crimes. The ICC is currently preoccupied with recent events in the Congo. The key move is that the protection of human rights is now considered more important than respect for the sovereignty of nation states. The UN can agree to intervene in the internal affairs of a state to protect human rights. The distinction between domestic or internal affairs of a state and international relations between states is, in respect of human rights, obliterated.

The second feature of these new conflicts of criminological interest is the role played by organised crime. As mentioned already, if the war is the consequence of a state falling apart and becoming a 'failed state' then it is hardly likely to be financed by effective government taxation. Such tax resources as do exist are likely to become the property of one particular faction in the conflict. The same goes for the national ordnance factories. A variety of irregular forms of taxation, income gathering and the purchase of arms and supplies will therefore come into effect. Organised criminal groups may be persuaded to finance the war from their various protection rackets or drug trafficking (Schlichte 2003. Strazzari 2003). Overseas or 'diaspora' communities of the same ethnicity may contribute. Weapons will be acquired from a diversity of sources. It is in the nature of such conflicts that small arms (mainly the AK-47 assault rifle and the rocket-propelled grenade) are of more importance than the main battle tank. Unlike the latter, these can be reasonably easily acquired on the proliferating international shadow arms markets. If the UN or the 'international community' attempts to stem the flow of funds from diaspora communities, or the purchase of small arms in illegal markets then the services of organised crime groups become especially important. Money laundering channels, well established in the area of drugs trafficking, can provide conduits for the transfer of funds to those factions not in control of state treasuries. Illegally acquired small arms and munitions can be easily smuggled through routes and channels already established by criminal traffickers who may be prevailed upon to use their well established drug smuggling routes to deliver these items. Other organised crime groups, crooked officials in their pay etc., will, meanwhile, provide arms manufacturers with forged 'end user' certificates to give the impression that the weapons are being sold to a company in a legitimate state. The consignment will then be quietly smuggled on the next leg of its journey to the war zone.

As well as organised crime groups an important role may be played by otherwise perfectly legitimate transnational corporations, particularly those involved in mineral extraction, mainly oil or diamonds, who may enter into direct (but of course clandestine) agreement with one or other of the contending parties to the conflict. They may, for example be granted access to important mineral deposits in return for covert financing of one of the parties to the conflict. Here we are no longer dealing with simply the criminogenic effects of war among the non-combatant population and largely outside the war zone but with criminality involved in the very organisation and conduct of the war itself. The gangsters who made money by selling stolen goods and luxuries and exploiting shortages of various consumer goods in London during the Second World War, pale into insignificance beside the drugs and arms traffickers and money launderers, not to mention the businessmen who liaise with them, who, in addition to exploiting the chaos and disruption of warfare for straightforward criminal purposes, sell their services to the perpetrators of these conflicts. In fact some commentators argue that the size, complexity and diversity of participants of this informal global economy sustaining new types of war has grown to such an extent that it can no longer be said that organised crime in any recognisable sense acts as its gatekeepers and co-ordinators. (see Robb 2007) But of course this is simply to say that the forms of criminal organisation have themselves become more diffuse and variegated. The overall effect, it may be argued, consolidates the perspective that these conflicts should be dealt with in the last analysis as forms of criminality.

The fragility of international legality in a post-global world

All these factors enhance the assimilation of war to crime. Even if we have to admit that such conflicts are proliferating and that the mechanisms of international criminal justice are in their infancy it can be argued that warfare and large scale armed violence will be increasingly dealt with from the standpoint of criminal justice: human rights, crimes against humanity and warfare as the violation of the UN Charter replace older notions of 'reasons of state' and 'the continuation of politics by other means.' Warfare is in a process of transition from politics to crime.

That is the optimistic view. There are however a number of reasons to be cautious. In fact the situation is quite complex and is becoming more so. To understand this we need to consider the fact that recourse to war in the settlement of conflicts between states has been a violation of the UN Charter since 1945. This has not of itself stopped inter-state warfare any more than did similar injunctions by the League of Nations during the period between the two world wars. States simply declared legitimate self defence in the face of aggression as the justification for military action. Such defence is legitimate while the UN assembles the forces and passes the appropriate resolutions to stop the conflict. The reduction of inter-state warfare between the major industrial powers is due more to the other factors discussed above. The armed nuclear stand-off of the Cold War period both illustrated and concealed the dynamics at work. On the one hand the, thankful, absence of war between the superpowers illustrated the changed reality of international relations in which conflicts between the superpowers were displaced to local and regional conflicts between client states. On the other hand the weakness of the UN was itself hidden by this overall stalemate.

The breakup of the Soviet Union left the US as the only superpower and allowed the latter to assume the mantle of a 'global policeman' or 'global state' intervening in to stop conflicts. The US was the backbone, for example, of the NATO intervention in the conflicts in former Yugoslavia. Had the Soviet Union still existed and been in a position to exert its interests, then this intervention would have been far more complicated and precarious. The rather naive assumption then developed that the US as global superpower would somehow act as the main police force for the UN. But it was the unilateral power of the US that lay behind this, not the power of the 'international community' and the legality of the UN Charter. Indeed it could be argued that a multi-polar system in which no state was in a position to dominate, rather than the existence of a single superpower, would be a better basis for the growth of international legality. But such a view assumes, in turn, that the main issues of competition between states have been somehow solved by the dynamics of globalisation.

As things stand, it has to be understood that the US is not a global state, yet alone an arm of the UN, but the most powerful national state -- at least in military terms -- using its position to pursue its national interests in a unrestrained manner. It is inevitable then that the fragile institutions of international criminal justice are heavily skewed by pressure from the interests of the US ruling class. The ICTY, for example, was only able to try former Serbian president Slobodan Milosevic because the US persuaded Serbia to deliver him in return for promises of aid. Undoubtledly under similar pressure the tribunal refused to indict NATO itself for alleged violation of international human rights law through the bombing of Serbian civilians (see Mandel 2004). Furthermore, at the present time the ICC, even if it had the inclination to indict the US and the UK for war crimes in Iraq, is faced with the fact that the US itself will currently have nothing to do with it on the grounds that US exercise of national interests are threatened by the fact that US military or other personnel may be indicted when carrying out US policies. The well known Project for the New American Century, the manifesto of the neo-conservative bloc currently dominating the US Administration, calls for reinforcement of US hegemony through overwhelming military superiority achieved by massive increases in arms spending and a reorientation of the capacity of US armed forces. (Kundnani 2004) Any general criminalisation of warfare places 'unacceptable' restrictions on the pursuit of such a project. The international lawyer Philipe Sands (2005) quotes US sources portraying the ICC as undermining "the independence and flexibility that America needs to defend our national interests around the world." (Sands 2005: 61-2). The US has meanwhile entered into a large number of bilateral agreements with countries (including the UK) to the effect that, usually in return for military aid, US personnel will not be indicted by the ICC.

Also, it is important to be realistic about what has been achieved with regard to the criminalisation of war itself. Despite the various conventions on torture and the clearer notions of human rights and genocide, and the establishment of various tribunals, as regards the outlawing of war as such there is still only the UN Charter and its principles of legitimate self defence against aggression. The ICTY and the ICC have been concerned with practices used in warfare. At the end of the day it is the war crimes and crimes against humanity, not the fact of war itself, that puts people in front of the ICC. So what we have is rather a continuation of the laws of war tradition rather than a reinforcement of laws against war. It remains the case that if, for example, China were to go to war with India -- over access to water or oil resources for example -- and the war were conducted in a traditional military manner (hopefully without the use of nuclear weapons) then the only issue would be whether the parties would heed the call by the UN to cease hostilities. No doubt both sides would plead self-defence against impending attack. The appearance of progress in the criminalisation of war is based, on the one hand, on supposed decreasing likelihood of war between major industrial states and, on the other hand, on the the perception that the predominant form of war is 'new war' which involves war crimes and crimes against humanity as part of its very nature and methods such that that the distinction between particular (criminalised) ways of conducting war and war itself has become obliterated. Add to this the fact that such wars frequently take place in the context of states falling apart and it is easy to see that they can be more easily criminalised with US, UN or NATO intervention looking very much like policing action even though it may in fact be inspired by the political interests of the powerful states rather than a desire to maintain the rule of law.

This brings us back to the fundamental characteristics of globalisation. We have already conceded that, alongside the forms of global interdependence that make conflict unproductive, there has been an expansion of the global inequalities and instabilities that produce conflict. These latter, which are a driving force for new wars, are concentrated in failed states and regions peripheral to the global economy. However, there are also forces at work likely to increase conflict between the major industrial economies. Hardt and Negri's idea of a globalisation as a displacement of older forms of inter-state imperialist competition by a self-regulating 'smooth space', seems, even a few years after its publication in 2000, curiously outmoded. (Boron 2005) More realistic readings of the dynamic of globalisation focuses on tensions resulting from large population movements, climate change, growing socio-economic inequality and intensifying competition between large states and regional blocs -- the United States, Europe, Russia, China and India -- for resources such as oil and water (see for example Arrighi and Silver 1999, Mann 2001, Meszaros 2001, Hirst 2001, UNDP 2005, Abbott et al. 2006), while at the same time globalisation implies that capitalism no longer is able to export its problems and problem populations to a colonial periphery of new resources and territories (Bauman 2004, Meszaros 1998). In such a context the US and indeed other industrial or industrialising states are likely to become more rather than less inclined to pursue their own national interests by all means possible. While a direct military confrontation, between say the US and emerging power such as China, is improbable for reasons already discussed the likelihood of conflicts between major powers and weak or failed states as the pretext for the seizure of natural resources or the domination of regions is very likely (see Gray 2005, Hirst 2001). The tendency of US administrations over a long period to engage in illegal violations of the integrity of other states which presented no military threat has in recent years intensified (Retort Collective 2005, Foster 2006). Meanwhile the 'new wars' which led to much optimism about the criminalisation of war, may often be surrogates for intervention by powerful states or transnational corporations under their protection, aimed at securing the control of resources, a fact which makes them harder to subject to the processes of criminalisation.

Under such conditions the legitimacy undoubtedly conferred by the growth of international human rights law and in particular the doctrine that such law overrides considerations of state sovereignty, can easily become simply a cover for the pursuit of blatant national interest carrying the obvious danger that it "enables individual states to intervene wherever and whenever they perceive a compelling humanitarian necessity, unaccountable to established legal limits on the use of force." (CESR 2003: 8. see also Atack 2002, Chandler 2002, 2006) Nowhere is this more graphically illustrated than in the case of the US invasion of Iraq in 2003. The US and its allies invaded Iraq in 2003 using two rationalisations. The first of these was that it was permissible to intervene in the affairs of another state on human rights grounds. Saddam had undoubtedly perpetrated numerous serious human rights violations against the Iraqi population and the US claimed that this gave it the right to intervene even without explicit UN approval and where the Saddam regime did not constitute an immediate threat to the US and its allies. The second rationalisation was a re-interpretation of the very notion of threat. Even when it was shown that Saddam had no connections with the Al Quaeda terrorist network and no evidence of any weapons of mass destruction that could possibly threaten the invading states, recourse was made to the idea that the Baghdad regime 'intended' to acquire such weapons. The notion of threat had been re-interpreted as the much vague and more flexible notion of risk in which action was justified on the grounds that Baghdad might in the future be likely to constitute a threat and therefore that there was a right of self-defence. This despite the fact that there was no immanent threat to national security which would have legitimised a pre-emptive self-defence action under Article 51 of the UN Charter. The UN had dealt with this watering down of the notion of threat once before. In 1981, when Israel destroyed an Iraqi nuclear reactor on the grounds of self-defence, claiming that Iraq intended to use the reactor to manufacture nuclear weapons which would be used against Israel, the UN Security Council unanimously condemned the act as aggression in violation of the Charter. (CESR 2003: 8) In such ways the US attempted to disguise the blatant pursuit of political interests by means of war as a form of global risk management.

With the US invasion of Iraq we can see what happens when a global superpower claims to act in the interests of international legality but is in fact pursuing its own national interests, in this case the domination of the oil resources of the Middle East. The open pursuit of national interest, in an increasingly multi-polar world, more or less stops dead in its tracks the tendency to the criminalisation of war that we have been discussing. The US claim that in Iraq (or for that matter Afghanistan) it is engaged in some sort of police action is pure distortion. And the war is impossible to criminalise in any effective way. If the ICC were to be involved then the principal indictment would be of the US for unjustified pre-emptive action resulting in large numbers of civilian deaths. But there would be no force anywhere in the world capable of hauling the US in front of the tribunal. Furthermore the recourse to war by the US and its allies for the very traditional aims of extending US power in the Middle East means that the notion of a fundamental transition in the nature of warfare that lay behind the optimistic perspective discussed above can no longer be seen as accurate. That perspective relied upon a chronology of transition from war as the pursuit of national interest by advanced states to 'new wars' fought by combinations of remnants of states and non-state organisations. Such new wars indeed exist but alongside and often as part of a new configuration of 'asymmetric' warfare in which one party to the conflict may indeed be a cocktail of elements similar to that described by the 'new war' model while the other party is the regular military of a powerful nation state. New wars have not so much replaced traditional wars as provided new ingredients and combinations resulting in a new and highly volatile hybrid. Such a scenario is best described as 'insurgency'. Iraq and Afghanistan are its current manifestations.

War, insurgency and post-military society

A scenario in which the military force of a major nation state faces an insurgency led by guerilla and other irregular forces is historically familiar. Guerilla warfare waged against regular military occupying forces has been around for a long time. The Americans developed guerilla tactics in their war of independence against Britain. They, in turn, almost two hundred years later were defeated by the combined forces of the North Vietnamese Army and the guerilla-organised Vietcong. The history of anti-colonial struggles is saturated with guerilla campaigns. In Iraq, however, we encounter a degenerated form of the phenomena. The insurgency itself is hardly a straightforward struggle for national independence against an occupying colonial power. On the one hand most Iraqis were glad to see Saddam deposed but then saw the indignity of foreign occupation which intensified as they came to understand that its purposes were anything but the reconstruction of Iraqi society by and for the people of Iraq. But at the same time the fall of Saddam regime has enabled the flaring up of ethnic-religious conflicts between Sunni, Shia and Kurd, with consequent attempts at ethnic cleansing very much along the lines of new war. In other regions, Africa in particular, new wars have frequently followed close on the heels of colonial independence as the solidarities forged during the struggle against the colonising power evaporated as it was found that the old colonial boundaries cut across ethnic identities and economic interests. But in Iraq all this is combined. The solidarity of the anti-US insurgency is simultaneous with, and interpenetrates with, the fissile ethnic conflicts (and the economic interests that underlie them) released by the fall of Saddam, himself an authoritarian ruler created and sustained for many years by Western imperialism. Organised criminality also plays a major role in supplying weapons but also as simply moving in to fill the vacuum of chaos that is post-invasion Iraq. Much kidnapping is organised by criminal gangs for ransom as well as forming part of Sunni-Shia conflict and ethnic cleansing and the insurgency against the US-led occupation. In Afghanistan meanwhile the involvement of organised crime in buying the opium crop grown -- as the only viable cash crop -- by poor farmers under the direction of local warlords, is a key aspect of the conflict. The vacuum created, in both countries, by US-led occupation has of course rendered these countries first class training camps for the very terrorist organisations whose activities in the region formed part of the rationalisation for invasion in the first place. Finally, in the context of the wider politics of the region the consequences of the conflict are destabilising. During the Cold War period, post-colonial regimes were able to make a reasonably stable, albeit highly disadvantageous, 'neo-colonial settlement' both with their erstwhile colonial masters as well as the two superpowers anxious to increase their influence. But in the Middle East the US has managed, in the name of 'spreading democracy', to create a chaotic combustion which will have unforeseeable consequences for decades to come effecting Syria, Iran, Turkey and of course the Israel-Palestine conflict.

The model of insurgency combined with criminality in fact combines most of the elements in the crime-war interface that we have described so far. The starting point was classic (albeit one-sided and 'spectacular') warfare pursued by the US in advancing its political interests in dominating the Middle East oil supplies and denying potential competitors control or influence in the region. This produced chaos in Iraq: poverty and shortages, disruption of community and family life, and the inability -- or unwillingness -- of the US and its allies to assemble sufficient resources for post-war reconstruction. This situation became a backdrop to serious increases in violent crime, rape, kidnapping for ransom, informal economies of smuggled and stolen goods (including oil). This merged into a variety of 'new war' in which the collapse of the Iraqi state (hastened by the US decision to disband the Iraqi army and most of the existing state administration) led to ethnic cleansing and territorial conflict. The insurgency against US occupation was the predominant form of organised armed action now being joined by and interacting strongly with these local issues. Organised criminal networks as well as supporting structures located in neighbouring states of Syria and Iran played a role in the provision of supply networks, access routes for external volunteers and secure bases for both these forms of conflict.

Despite these similarities to new wars and the blurring of crime and warfare, the fact that one of the participants in the conflict is a major state, the US, means that the effective subsumption of this type of warfare under the paradigm of criminal justice remains an aspiration and little more. However, after the disastrous failures of US (and the UK) to achieve any clear objectives in either Iraq or Afghanistan, the rising opposition to the war domestically and internationally may mean that the main form in which the growing conflicts over scarce resources in an increasingly multi-polar world is that of surrogate war in which other actors, state and non-state, funded covertly or overtly by the US engage in conflict on behalf of the interests of the latter. Much hangs on the mode of termination of US occupation of Iraq and the conflict in Afghanistan, the ways in which the US acts against others it sees as a threat to its interests -- notably Iran -- and the actions of other major players such as China. We will not dwell further here on conjectures about the likely future of international relations. The point has been made that such conflicts involving the US or other major state actors cannot be ruled out and that they are very resistant to criminalisation.

It was argued earlier that progress in the criminalisation of warfare had been more concerned with war crimes than with war itself and that one reason for its relative success was that in 'new wars' war crime and warfare became virtually indistinguishable. The ICC and similar tribunals continue to pursue war criminals in regional conflicts (currently for example in the Congo and Dafur) in which major states are not direct participants and in which their interests are not directly involved. But even where they are, as in the conflicts we have been discussing above, the fact of the growth of an international apparatus such as the ICC, much greater surveillance of conflicts, by news media and international Human Rights NGOs and the greater likelihood of 'whistle blowing' within the military, combines with the emphasis on war crime to increase the likelihood of detection and prosecution of human rights violations committed by the military forces of major states (see Kerr 2006).

The other side of the coin of the greater possibility of detection of war crimes is their greater likelihood of being committed. In post-military society, civilian values tend to percolate military organisation rather than the latter transmitting its distinct culture into civil society. This is for two reasons. Firstly such societies are reluctant to become engaged in wars of long duration with high casualty rates. In the case of the US memories of the Vietnam defeat accentuate this tendency. The result is what Martin Shaw calls 'risk-transfer' war (Shaw 2005) as (if I understand his argument) the only way a post-military society can fight wars: by transferring the associated risks (battlefield casualties) to the enemy. Populations, only marginally involved ideologically or economically in anything resembling a 'war effort' rapidly withdraw support in the face of high casualty rates. Risk-transfer war, as Shaw notes, usually taking the form of bombing, artillery or other disproportionate response to attacks by insurgents (with inevitable 'collateral damage' to innocent civilians) and with few troops on the ground was reasonably sustainable in Kosovo and Afghanistan (until recently). Nevertheless, high civilian casualties occasioned by 'force protection' and risk minimisation strategies do not sit easily with the notion of military intervention as some form of 'cosmopolitian policing.' In the case of Iraq there was an attempt at replication of this type of war-at-a distance in the guise of the recourse to 'spectacle' warfare (Kaldor 2003) exemplified in the 'shock and awe' of the initial (so-called 'precision') bombardment of Baghdad whose (wrongly) foreseen outcome was a rapid collapse of resistance. Thus risk transfer war has seriously unravelled in Iraq, again in the face of sustained insurgency necessitating extensive and debilitating ground warfare with rising casualty rates both for the occupation forces and Iraqi civilians, and little clarity regarding exit strategy. Other palliatives, such as the growing deployment of private military companies (Jamieson and McEvoy 2005), has been unable to prevent the emergence of conditions in which the recruitment and motivation of armed forces personnel becomes problematic. Desertion rates are rising and recruitment is falling. The dynamics of a risk-transfer war, now unravelling with rising casualty rates; being fought by the armed forces of a post-military society which has not been effectively mobilised either for total war, or for colonial conquest creates new relations between civil and military culture largely absent in the total war scenario.

A peace-keeping, policing approach to the Iraq insurgency is advocated by some military intellectuals and officers who have articulated a notion of 'fourth generation warfare' which goes some way to understanding that any successful strategy against the Iraq insurgency must involve a serious 'hearts and minds' and sensitive policing element organised through an 'inter-agency' network which co-ordinates "the fields of diplomacy, defense, intelligence, law enforcement, and economic and social development." (Hammes 2005: 7) But at the time of writing (early 2007) it is arguably too late for such a strategy to make much impact. The US forces in particular have found themselves engaged in a sustained ground warfare which in fact requires a military culture much closer to the older 'killing mood' of classic militarism but under conditions in which the military institution is less capable of mobilising society around these values and where, therefore, military recruitment acts as a conduit for the transmission of civilian values into the military. Under these circumstances the resources for the 'killing mood' to a considerable extent are those found in civil society itself in various criminal and repressive subcultures. Recruitment shortages inevitably result in heavy reliance on reservist and part-time soldiers as well as induction into the military of individuals who might otherwise have been rejected (due to educational deprivation, criminal record, diagnosed dangerous personality traits etc.). Elements of the killing mood are already available as part of the excitement of crime (Katz 1998) but less easily tempered and co-ordinated by the military discipline of obedience and restraint which distinguishes a modern army from a criminal gang. The Iraq occupation has provided the context for the torture and sadism of Abu Graib, and various alleged reprisal shootings of civilians. In the case of Abu Ghraib there is evidence of a direct connection in the form of US military personnel being drawn from part-time US National Guard reservists whose civilian employment was as guards in high security prisons where practices similar to those revealed at Abu Ghraib were by no means rare (see Gordon 2006) The inevitable brutalisation resulting from prolonged ground war and close engagements in which military discipline may episodically metamorphose into gang violence may find its resources in generally rising levels of aggression and egoism in a civil society which is becoming increasingly fragmented and fissured under the pressures of post-industrialisation (Bauman 1995, Young 1999, Lea 2002) and in which the long march of the 'civilising process' (Elias 1994) has gone into reverse (see Hobsbawm 2006) This is even more the case where, as in Iraq, there is a need for temporary expansion of the size of the military through the use of reservists and paramilitary formations.

So a provisional conclusion might be that there has been some limited progress along the road to the criminalisation of war. The emphasis has been on war crimes rather than war but because 'new wars' tend to blur the distinction they can more easily be subject to criminalisation backed up by new institutions such as the ICC with a substantial degree of international legitimacy. Secondly, there is a greater likelihood of war crimes committed by official state military forces being detected and prosecuted. But against this, the US and its pursuit of national interests by military means in an increasingly multi-polar world means that the criminalisation of war as such is as distant as ever. Moreover although war crimes by US personnel in Iraq have been subject to investigation and prosecution the US rejects any authority on the part of supranational institutions such as the ICC. However, before coming to any final conclusions we need to encounter the third (alongside new wars and insurgencies) and undoubtedly currently the most important form of conflict in the world at the present time: terrorism.

Terrorism, risk and the militarisation of criminal justice

Terrorism presents the third variety of new conflict. Of course, terrorism has been around for a long time, though its form and aims change. What all forms of terrorism have in common is that they are "intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act." (UN 2005 para. 91) Terrorism can be seen as a form of 'asymmetric' war, conducted by non-state politically motivated operatives, carried back into the cities and civilian populations of the enemy states. Of course, terrorist methods may be deployed by other institutions including regular armies but that is outside the discussion here. At the present time it is conventional to make a rough distinction between 'old' and 'new' forms of terrorism. Old terrorism, epitomised by the IRA, is closer to insurgency and seen as having had clear political goals relating to the liberation of a specific national territory from perceived foreign domination. Groups such as Hamas or Hizbollah can be characterised in a similar way. Such groups, being based in a defined territory, tend to have a conventional, if subterranean, hierarchical organisational structure with a political leadership and chains of command. This makes infiltration by police or security agencies feasible. Meanwhile such organisations are usually prepared to shift from terrorism to conventional politics possible if the latter come to be judged as more effective. Negotiations aimed at political compromise and the ending of violence have been successfully deployed by the British state in the case of the IRA

New terrorism as currently exemplified by the Al Quaeda organisation is, by contrast, characterised by a loose network structure. This structure, rather than based in a particular territory, operates on a global scale. It establishes links through migrant and diaspora communities and the internet and utilises diverse forms of asymmetric warfare currently including suicide bombing. The willingness of groups like Al Quaeda to operate on a global scale can be seen as similar to the increased willingness of the powerful states to intervene unilaterally without UN authorisation.

The disregard of the norm of non-intervention, reflected in the frequency with which the leading Western powers have taken military action without securing organisation by the Security Council, has its counterpart in the emergence of a terrorism with a global reach. (Guelke 2006: 184)

An important feature of a highly motivated but loose network structure is the capacity to inspire audacious and spectacular actions by individuals with whom it has little or no direct connections in terms of organisational membership (Coker 2003). By comparison with the IRA and groups oriented to the defence or liberation of specific territories, Al Quaeda and similar groups are seen as embracing "far more amorphous religious and millenarian aims and wrap themselves in less-cohesive organizational entities, with a more-diffuse structure and membership." (Hoffman 2003: 9 see also Hess 2003) This diffuse structure makes infiltration and interdiction much harder -- there is not much in the way or organisation to be infiltrated -- while the potential access to weapons of mass destruction, including nuclear and biological, makes the consequences of a successful terrorist action extremely severe. The reference to 'millenarian aims' such as the restoration of an Islamic Caliphate in the Middle East, or even globally, make a shift from violence to political compromise difficult to envisage. Such aims can also easily be used to imply that the causes of Al Quaeda terrorism lie in diffuse and irrational motives variously characterised as 'pure evil', a 'clash of civilisations', an 'extremism', or 'islamo-fascism' and so on which have little or nothing to do with US, British and Israeli policy in the Middle East. The attempt to link the albeit 'expressive' and diffuse character of such terrorism with the widespread real resentment throughout both the Middle East and diaspora Muslim communities in the global north at Western policy is sometimes regarded as 'excusing terrorism'. Similar issues occur of course when analysing the causes of particular types of crime. The criminologist is very familiar with the accusation that to attempt to account for the causes of particular types of criminality and to render them understandable is somehow to justify them as forms of action. In fact the combination of the US exercising its national interests and seeking to dominate the societies and mineral resources of the Middle East, not to mention locally perceived long running injustices such as those of the Palestinians, has produced resentment throughout the Middle East which is likely to fuel this form of terrorist activity for some time to come (Fisk 2006). Even to say this is highly controversial. It is a political statement. Additionally, the characterisation of Al Quaeda terrorism as some form of self-generating hatred for all 'western values' has become the starting point for a stereotyping and blaming of the Muslim communities in Europe as themselves covert sources of terrorism.

What we are interested in however is less the causes of and precise structure of Al Quaeda and similar terrorist networks than the issue of whether they are to be dealt with as forms of crime or warfare. If the tendency towards the criminalisation of warfare is a strong one then it should be reflected in the way most states deal with terrorism. Terrorism has always straddled the boundary between warfare and criminality. Like war it can be regarded as a 'continuation of politics by other means' but the immediate targets are civilian individuals not states. Terrorists may smuggle themselves into crowded city centres and transport networks with the aim of creating mayhem injury and death among civilian population and then escape into prepared safe locations or, in the case of suicide bombing, end their own lives. The planning and execution of a terrorist action has far more in common with the planning and execution of a bank robbery than with a military action. Thus even with the added obstacles of loose network terrorist organisation, police detection methods have an obvious superiority over anything resembling warfare. It is hardly surprising therefore that terrorism has been dealt traditionally dealt with as criminal conspiracy. This is true in the US (Paulson 2005, Caffentzis 2001) In the UK where the in campaign against the IRA during the 1970s and 80s, although the military were involved, individuals were apprehended largely as a result of intelligence gathering and police forensic skills, prosecuted in the courts under various conspiracy laws and punished as criminals.Various 'wartime' measures such as internment of IRA members were indeed deployed, although regarded subsequently by many as largely counter-productive (Travis et al. 2005) Meanwhile a struggle to recognise the political nature of IRA activity as a war against British occupation and for prisoner of war status for those convicted of terrorist offences, came from the IRA itself. Early release of many prisoners convicted of terrorist offences formed part of the transition from terrorism to political compromise which finally brought armed violence to an end. Indeed the recognition of the political aspirations behind IRA activity was an essential prerequisite for the political compromise which brought the violence to an end. But this was something forced on the British state by the dynamics of bringing the 'Troubles' to a conclusion. The default position was an attempt to depoliticise the conflict and portray the IRA as a group of criminal conspirators.

It is at first sight, therefore, perplexing that the response by the US and British governments to the actions of Al Quaeda or individuals inspired by this network, in producing horrendous loss of life in New York in September 2001 (the so-called 9/11) was to inaugurate a discourse of warfare rather than criminality. Particularly so when the previous 1993 bombing of the World Trade Center was treated as a criminal act. Why an appellation which, on the face of it, plays into the hands of terrorists by granting them a certain legitimacy as 'warriors' with a political purpose? (Caffentzis 2001 see also Freedman 2002). The characterisation of the action in New York as an 'act of war' against the United States seemed to cut lose the terms 'crime' and 'war' from their moorings and to turn them into floating signifiers "without stable epistemic co-ordinates." (Morrison 2006: 31) Of course, despite the rhetoric of war and military defeat, terrorists are generally treated in practice as criminal conspirators. But, on the other hand, recent US and UK anti-terrorist legislation, is having the effect of re-establishing something approaching the type of wartime mobilisation exemplified in Britain by Order 18b and similar regulations in force during the Second World War. While there are currently no internment camps, the UK government has attempted, though not without strong resistance from the judiciary, to place individuals under restrictions which may in some cases amount to virtual house arrest, to reverse the burden of proof regarding association with terrorism and to introduce vague concepts such as the 'glorification' of terrorism as the basis for criminal prosecution. Meanwhile there are constant sermons delivered by politicians and the media to the Muslim communities to identify and isolate the 'extremists' in their midst. The cumulative effect is to construct the identity of Islam as fundamentally a terrorist culture and religion and Muslim communities in Western Europe as risk groups analogous to 'enemy aliens'. This state of affairs is not only reminiscent of wartime surveillance and mobilisation encroaching on civil liberties and due process, but is justified precisely in terms of the idea that the West is, in some real sense, 'at war'.

In order to sort out this issue we need to begin by bringing into question the clear distinctions between war and criminal justice with which we began this discussion. Thus far our main focus has been the possibility of, and obstacles to, the criminalisation of war and this led us to start out from a clear distinction between crime and war. In making this distinction we tended to assume, for example, that domestic criminal justice systems function predominantly in conformity with the doctrines of due process and the rule of law and that this is the source of their legitimacy. The danger here is that of elaborating an ideal type of criminal justice in terms of which attempts to criminalise war will inevitably be found to be imperfect. In fact many of the problems facing the criminalisation of war are also faced by domestic criminal justice systems. In particular powerful interests may deflect criminal justice agencies not only internationally but within nation states. There is, for example, a reluctance by criminal justice agencies to intervene too forcefully in business criminality both due to the complexity of the issues and also the desire not to disrupt the workings of the economy. Recently the British government intervened to stop criminal investigation of a British armaments company suspected of paying bribes to foreign clients. The motive was clearly a fear of losing important weapons contracts. This incident was undoubtedly the most spectacular such interference in recent years and one in which the government was not at all reluctant to juxtapose the rule of law to the 'wider national interest'. This example of course shows the relative nature of the distinction between national and international. It may be the same powerful transnational corporation that both puts pressure on domestic criminal justice systems to minimise their 'interference' and at the same time supports the freedom of a powerful state to wage war (to secure important raw materials for example) without the 'interference' of the UN or international legal bodies.

But what interests us here is the other side of this coin. Even if military action by major states is increasingly a form of policing backed up by international criminal justice institutions such as the ICC, it does not in fact follow that what is happening is the triumph of criminal justice and legality over warfare. The point is simply that criminal justice may itself be undergoing significant change and the direction of that change may be towards, rather than away from, warfare. In other words a focus on the attempts to bring war under the rubric of criminality may be in fact a focus on one side of what is a two sided movement in which some aspects of warfare come to resemble crime while some aspects of the control of crime come increasingly to resemble warfare. The same factors, the breakdown of the division between on the one hand the national territorial and the sphere of criminal justice and on the other hand the relations between sovereign states governed by national interests and warfare into a much more murky and blurred terrain of wars, new wars, insurgencies terrorism and international organised crime means that criminality, criminal justice and warfare occupy overlapping terrains and it by no means follows that what comes to predominate is criminal justice and criminality.

For these reasons it might be more plausible to start analysing reality in terms of a continuum rather than clearly separated opposites. We can then look at how warfare and criminal justice interpenetrate rather than regarding them as in implacable opposition. This is not in any way to suggest that the liberal criminal justice system based on due process and civil liberties is not to be defended, rather that what is happening in the real world is a process of blurring which we need to accurately describe. The notion of a continuum also has the advantage of being more historically accurate with regard to the history of criminal justice systems in the major industrial states. In the early stages of urbanisation and industrialisation for example the criminal justice agencies, in particular the newly formed police forces, spent a large proportion of their efforts in the disciplining and surveillance of the new urban working class. We might call this the security paradigm version of criminal justice. As the British historian Victor Gatrell wrote, concerning English criminal justice in the late eighteenth and early nineteenth centuries:

"…it was not only the motley, vast and hitherto little regarded populace of paupers and pimps, vagrants and sharp practisers, pickpockets and beggars, unemployed and derelict, thieves and robbers, who were now transformed into that collectivity which Frenchmen in the 1840's were to term the 'dangerous classes'. The whole world of the poor tended to be accommodated within a system of criminal labelling not only to express the social fear of the respectable, but also to justify a broader strategy of control to cope with that fear." (Gatrell 1980: 270) [read my lecture on the history of English police in the nineteenth century]

The existence in many states of paramilitary forces or gendarmeries (not to mention the deployment of military forces themselves in a public order role) testifies to the fact that the state may occasionally wage 'war' on sections of its own population (Johansen 2001 Lutterbeck 2004). The outcome may be arrest and prosecution for substantial numbers but at the same time many large scale outbreaks of public disorder equally be diffused by a 'ceasefire' and the withdrawal of paramilitary or riot police and various forms of public inquiry into the sources of disorder and the associated grievances.

From this perspective it is no surprise to find that entire criminal justice systems may be entrenched somewhere along a continuum from liberal notions of criminal justice to warfare. In a recent important contribution Heinz Steinert (2003) attempts to characterise the US criminal justice system as having its origins, by contrast with those of Western Europe, in a model of armed citizenry:

"In the European understanding the state monopoly of force implies a dis-armed civil society that practices peaceful conduct and commerce... Things are a little different in societies based on an 'armed citizenry'. There the principle is 'balance of threat' rather than the 'state monopoly of force' -- balance of threat inside the community, that is, the combined community firepower against outside enemies. Crime is, in this model, the illegitimate arrogation of superior fire-power, for instance by a ruthless cattle baron and his cowboys or a gang of outcasts and robbers that invade the community. The forces of order, i.e. the sheriff and the armed men behind him, need superior fire-power and they need to demonstrate it. The criminals are treated like outside enemies and are, in the end, driven out or killed." (Steinert 2003: 269-70)

"In this model the strict separation between police and military that we know and value in Europe is blurred. Much of the confusion in European thinking about crime and policing is maintained and reinforced by the increasing hegemony of the US model -- not least by way of Hollywood." (Steinert 2003: 270)

In other words a blurring of crime and war emerges as a phenomenon well established in the history of the American frontier. Originally sustaining a popular frontier vigilantism, the armed citizenry model now reappears as a characteristic of state sovereignty in the form of a militarised crime control which dispenses with the niceties of due process in favour of securing the balance of power against the enemy. Such an orientation partially inverts some of the key features of the (European) criminal justice tradition. In the latter the power of the offender is rarely a consideration: the state is assumed more powerful than the offender. The focus is on the establishment of guilt, of the correct identification and apprehending of the offender, to which tasks due process and criminal procedure are devoted. In the armed citizenry model, as in warfare, the considerations are reversed. The offenders, like a military enemy, are known, the problem is not their correct identification and punishment but rather the neutralisation of their potency. And this neutralisation cannot be taken for granted, it is the outcome of a struggle the aim of which is the defeat and surrender of the enemy who is then 'brought to justice'. This termination is secured, to revert for a moment to the frontier analogy, irrespective of whether the enemy is taken 'dead or alive'. Many of these themes surfaced in the speeches of US President George Bush in the immediate aftermath of 9/11. Meanwhile in Europe the push towards the risk control model of pre-emptive criminalisation means a de facto convergence with the US approach though without the latter's frontier imagery.

It is the strategy of controlling risk through various forms of pre-emptive criminalisation that is the main vehicle for the move along the continuum from criminal justice towards warfare. I do not propose at this point to enter the vast debate about the characterisation of modern society as 'risk society'. Suffice it to agree with Ulrich Beck (1992) that a large part of political decision making in modern industrial societies is concerned with avoiding the risk of something happening rather than dealing with it after it has happened. This is because many of the risks faced are so severe (nuclear pollution, global warming, disease epidemics come to mind) that to the extent that they become reality they undermine the very resources which might be used to deal with them. If we return to the issue of terrorism then the argument is that the consequences of a successful terrorist incident, in particularly where the terrorists are prepared to sacrifice their own lives or where nuclear or biological weapons are deployed, may be so terrible (even worse than 9/11) that what is crucial is to take all possible measures to avoid such an incident happening in the first place. The 'war on terror' comes to be seen as a variety of risk management (Heng 2002, 2005) This, in turn, is used to justify a policy of pre-emptive criminalisation which involves sanctions against individuals or groups who may be regarded as under suspicion -- and thus as embodiments of risk -- but against which there is as yet insufficient evidence to secure conviction in the courts. Thus in the UK Control Orders under Anti-terrorism legislation of 2005 enable the Home Secretary to impose graduated restrictions on individuals which in extreme cases can amount to house arrest. While there is still considerable conflict with the judiciary over the legality of some of these measures the general drift is clear. Meanwhile other forms of activity not previously criminalised such as the 'glorification' of terrorism (in the UK outlawed in 2006) point in the direction of a new 'state of exception' reminiscent of the classic wartime mobilisation outlined at the beginning of the discussion. We are back with a mild variety of Order 18b directed, as mentioned above, largely against Muslim communities as analogous to 'enemy aliens'.

As part of this dynamic, anti-terrorism measures act as a driver for military standards of risk assessment to infiltrate traditional police practices. The aim of intervention becomes disruption as much as detection of conspiracy to commit criminal offences (Walker 2005). Various forms of movement restriction, such as the control orders mentioned already, seizure of assets, arrest and even use of deadly force, may be made on the basis of much lower levels of risk than those normally deployed. Arrest or prolonged questioning of suspects may become less the conclusion of surveillance and investigation which establishes a reasonable chance of criminal conviction than itself a method of securing further intelligence. Movement restrictions and even internment may be directed against individuals on the basis of vague, actuarially established risk profiles. That is, profiles established on the basis of statistical probabilities (of being involved in terrorist activity). Systems of profiling through various types of data-mining proliferate. (Gandy 2003, Wood ed. 2006) These, rather than acting as pointers for further police investigation leading to possible gathering of evidence suitable for arrest and conviction, become themselves the basis for pre-emptive restrictions on the basis of actuarial suspicion. Thus a focus on those incidents which are likely to lead to a conviction in the criminal courts is displaced by a simple notion of public security. As regards the use of deadly force, as the shooting by police in London of the entirely innocent Brazilian, Jean Charles de Menezes, in July 2005 suggested the adoption of a 'shoot to kill' policy. Such a policy on the part of British security forces was alleged to have occurred in Northern Ireland during the 1980s. In that context the alleged existence of such a policy was highly controversial and resulted in a major Inquiry led by a senior UK police officer, the findings of which were never made public. The controversial nature of such a policy can be readily understood in a context in which anti-terrorist measures were understood to operate within a criminal justice paradigm. Although military agencies were involved they were supposed to be acting in 'aid to the civil power' and were thus governed by criminal justic norms. By contrast the shooting of Mr de Menezes "might suggest ... the entirely illegal adoption of a policy of extrajudicial execution under the guise of protecting the public." (Guelke 2006: 208)

Such strategies are of course quite normal under war conditions. That does not mean that they are inevitable or, indeed, effective. Most terrorist plots are still solved by careful detective work by police and security agencies using covert surveillance and informants. The devastating consequences of a successful terrorist action only serves to make, it might be argued, traditional police work all the more important. Intrusive surveillance and pre-emptive criminalisation targeting communities identified as at risk of harbouring terrorists may alienate that community so as to reduce the number of people prepared to act as informants and at the same time assist radicalisation and actual recruitment to terrorism. Nevertheless repeated references to gravity of the risk of a serious terrorist incident act as a potent device for the silencing of all criticism of the trade-off between liberty and public security. This, as Lucia Zedner (2005) has pointed out, reverses the relationship between the two. Liberty becomes only a means to an end for security and as such it can be replaced by other (more authoritarian) means. The defence of civil liberties has to start from security as a means to the end of liberty:

"Once we conceive of security not as an end in its own right but as a means to other goods then, logically, that means must be appropriate to the ends sought. If increases in security so diminish liberty as to contradict the very end sought then other more appropriate means must be sought." (Zedner 2005: 532)

Nevertheless the US-led 'war on terror' has firmly entrenched itself as a process of dilution of criminal justice and due process by a dynamic of pre-emptive intervention based on notions of risk and probability more suited to the battlefield rather than the crime scene. But this has not led to a simple reverse transition from criminal justice back to 'warfare'. Rather the notion of the defence of security has occupied a sort of mid point along the continuum between criminal justice and warfare in which military conceptions subvert civil liberties and due process but at the same time some of the legal guarantees enshrined in the traditional 'laws of war' discussed above are nowhere on the horizon.

In this respect the notorious US detention facility at Guantanamo Bay in Cuba is emblematic. Inmates, who may have been seized and handed over the US military or security agencies around the world, arrive at Guantanamo in a variety of ways many of them no doubt amounting to illegal kidnapping. There are numerous other issues surrounding the legality of the US anti-terror regime such as the notorious outsourcing of interrogation to authoritarian regimes around the world (known as 'extraordinary rendition') which we will not discuss here. The focus here is the legal characterisation of the Guantanamo inmates. They are regarded as neither prisoners of war, entitled to the protection of the various Geneva protocols mentioned earlier, nor as criminal accused awaiting trial and therefore entitled to all the rights of due process. Rather, they are seen as a third category: enemy combatants. Despite the similarity of such nomenclature to the concept of prisoner of war, and notwithstanding that some such individuals may have been taken while actually engaged in terrorist or insurgent activity, such inmates are, in the last analysis, simply members of a risk group: individuals under some suspicion of unspecified connection with, or knowledge of, Al Quaeda activities and therefore to be interrogated for information or just to be kept out of circulation so as to minimise the risk that they may, in the future, commit terrorist actions. Guantanamo is thus the apex of the regime of pre-emptive criminalisation, the living symbol of the new virtually permanent 'state of exception' (Agamben 2005). Permanence is an important characteristic. Many inmates in Guantanamo face an virtual permanent internment. This state of exception is disconnected from a state of war in the traditional sense. It is open ended in that the war on terror, unlike (conceivably) the current warfare in Afghanistan or Iraq, has no recognisable end point such as surrender or peace treaty, at which point prisoners can be exchanged or released, and it is legitimised not in terms of the necessities of warfare against an enemy state but rather as a 'war' against a diffuse network which (like criminality) may strike at any time and may never be entirely defeated. The open-ended war on terrorism then fuses with other, similarly open-ended, threats to the security of national states and regional groupings such as the European Union. These include such phenomena as illegal immigration and criminal trafficking. Preparing for war becomes thus less important than managing security. Warfare and policing thus fuse at a mid-point on the continuum which can be described as the security paradigm in which police, intelligence gathering, surveillance and military action against an enemy combine in new and flexible strategies, traversing boundaries between the national and the international to maximise security by minimising risk. From warfare is also taken the relative autonomy of the military (from political 'interference') to conduct the war once it has been declared. Thus as Loader (2002) argues, in the European Union it is the semi-autonomous police bureaucracies which attempt to define security priorities and in doing so sit uneasily with the equally important and entrenched discourses of human rights.

Security and the management of risk

But there is an important final component to the argument. In the current context, especially in liberal democracies of the global north, the new network terrorism can easily be read as the main force which fuses the global with the national and which pushes domestic criminal justice systems towards the security paradigm in which a

... demonstrable criminal offence is no longer a necessary precondition for the use of force; instead, a perceived threat, a risk profile or a sense of insecurity may all be deemed sufficient. There may, indeed, be grounds for speaking of a paradigm shift. (Hornqvist 2004: 31)

But as we have already noted, criminal justice systems already at different times in history and in different societies occupied various points along that continuum from due process to warfare. We mentioned the US armed citizenry model and the role of policing in early industrial England. It is hardly surprising then that there should also be forces at work within domestic criminal justice systems which, under present conditions, push them along the continuum in the direction of a more militarised approach. What we have called the security paradigm is a meeting point where pressures emanating from warfare and also from domestic social policy meet.

An obvious vehicle for pushing domestic criminal justice in the direction of a more military orientation is of course the interdiction of organised crime. If the issue of terrorism brings international warfare into the domestic arena, that of organised crime and even various types of street gang activity, have provided the pretext for a movement of domestic criminal justice agencies in the direction of a more militarised style of intervention. The security discourses concerning organised crime increasingly fuse with those of terrorism. This is hardly surprising considering the integration of organised crime into the forms of new war and insurgency that we noted above. At the same time decades of neoliberal globalisation have reduced large areas of the global south to poverty and social breakdown. Some areas, such as in some Latin American states but also in parts of major US cities, while the middle classes barricade themselves inside sophisticated gated communities and fortified commercial zones (Caldeira 1996), large areas of rural and urban slums are effectively beyond all but episodic control by the authorities. These areas are inhabited by organised criminal groups, warlords, street gangs (Rogers 2004) and terrorist networks, some of whom are quite capable of military-style confrontations with the state authorities. In response, criminal justice merges with paramilitary warfare whose aim is less to bring offenders before the courts than to simply inflict disruption and military defeat on an enemy. There is concern that this type of situation may expand within the southern border regions of the US. (see Bunker and Begert 2006) Similar situations prevail in large parts of Africa (Cox 1995, Bayart et al. 1999, Duffield 2001, Nordstrom 2004).

Some security intellectuals have fused these elements into a notion of 'virtual states' or 'criminal-states' inhabited by 'criminal-soldiers' which challenge both the economic integrity and the legitimacy of rule of national territorial states. (see for example Bobbitt 2002, 2003, Robb 2006, Sullivan 2002, Jenkins 2004). The concept of virtual state renders the old distinction between criminal justice (for citizens within the state) and warfare (against external enemies) redundant by rendering significant sections of the domestic population as de facto external enemies. It could be argued that in some regions the national state itself becomes a variety of 'virtual state' due to its abandonment of social integration through welfare and economic planning and a retreat to the security paradigm.

The state as security apparatus has various forms of coercion at its disposal including both criminal justice and military action, but in the battle against criminal/ terrorist virtual states the deployment of one or the other, or a mixture of the two is purely a tactical matter. This is both as regards means (a focus on community relations, careful intelligence gathering on the one hand or violent confrontation on the other) and aims (arrest and criminal conviction in the courts or simply the defeat and dismemberment of the criminal organisation). Police and military action are not qualitatively distinct but are just different aspects of 'fourth generation warfare.' The question is how best to defeat the enemy. So the same global forces of economic and social fragmentation both render some traditional states as no longer viable and give rise to new wars and human rights violations which are more amenable to criminalisation and, at the same time render groups and networks who might have hitherto been regarded as criminals as enemy soldiers of 'virtual states' towards whom military intervention is seen as legitimate. Mike Davis quotes a retired US military officer:

"The future of warfare lies in the streets, sewers, high-rise buildings, industrial parks, and the sprawl of houses, shacks, and shelters that form the broken cities of our world... Our recent military history is punctuated with city names --Tuzla, Mogadishu, Los Angeles, Beirut, Panama City, Hue, Saigon, Santo Domingo--but these encounters have been but a prologue, with the real drama still to come." (Peters 1996: 43 quoted in Davis 2006)

None of this should prevent a recognition that much organised crime, gang membership, even terrorism is an aspect of the search for recognition on the part of the increasingly excluded and marginalised masses. It is rather a matter of understanding that where the global economy and the social policies of states no longer focus on social inclusion and integration but at the same time spread the message of Western values and consumption, then the marginalised will develop forms of expression, not to say rage, and innovatory ways of combating their exclusion (Young 2003). The security paradigm and the perception of the masses as virtual (enemy) states is the result of the abandonment of the politics and economics of inclusion, under the impact of global neo-liberalism.

However, the relatively stable societies of Western Europe and -- with qualifications -North America appear to have some distance to travel towards such a scenario. It might appear that the driving force for the shift to the security paradigm is overwhelmingly the external threat of global terrorism and criminal trafficking. The effect of anti-terrorist legislation in the UK in the development of pre-emptive criminalisation has already been mentioned. These developments are mirrored in recent measures against organised crime which exhibit a similar risk based approach aiming at the disruption of criminal networks by widening definitions of criminal conspiracy, pre-emptive seizure of assets of those suspected of involvement in trafficking by virtue of exhibiting a criminal lifestyle. That is to say that a high risk of criminality can be pre-emptively established by virtue of group membership and this in itself becomes the basis for contraint. Meanwhile there is an increasing burden on ordinary citizens, particularly in banking and financial services, to act as the eyes and ears of the law enforcement agencies. The 'war' against organised crime has been as important a vehicle as terrorism for the propogation of the notion that against the 'powerful offender' the domestic criminal justice system must inevitably compromise on due process and civil liberties. Critics point out however both that such measures inevitably produce a 'trickle down' to focus on less serious offences (Lea 2004) and also that there are ways of dealing with organised crime which do not necessitate such compromises (see for example Naylor 2002). But such alternatives swim against the tide which is displacing social integration with the management of risk groups as the basic orientation of social policy.

In this way high profile activities like terrorism or drugs trafficking can amalgamate with concerns about low level risks such as anti-social behaviour or incivilities as aspects of a single security paradigm. An example is urban planning and crime prevention. Debates on 'designing out crime' and embedding surveillance structures in architecture and urban design have been around for decades. Recently they have taken on a new orientation to the risk of terrorist incidents. (Graham 2004, Coaffee 2004) in which crime prevention measures such as CCTV surveillance, controlled entry zones (shopping precincts and gated communities) -- themselves already subject to critique from the standpoint of both effectiveness and civil liberties -- are being integrated into wider concepts of security and 'resilience' which include response to terrorist incidents. Adding a terrorist dimension to urban security presents no special problems. Such urban 'resilience' (Swanstrom 2002, Coaffee and Wood 2006) builds on existing structures through intensified electronic surveillance, access restriction to certain zones, building security and surveillance into new urban construction and planning.

Thus anti-social behaviour and terrorism become elaborated and intermeshed in the working of what might be called 'the authoritarian city' As Coaffee and Wood observe:

"There are suspicions that government and interest groups are re-appropriating the ‘terrorist threat’ agenda and constructing a ‘climate of fear’, in part, to justify policy development and implementation – for example, around countering anti-social behaviour and the current ‘respect’ agenda, policies to restrict democratic protest, the way in which public spaces are increasingly designed and monitored to exclude the dangerous ‘other’, and attempts to introduce identity cards. This merging of crime prevention, anti-sociability measures and security within an array of policy agendas, underpinned by the rhetoric that we are living in a changing, uncertain and dangerous world, is leading to serious questions over civil liberties and the extent to which Western democracies are moving towards security states and surveillance societies." (Coaffee and Wood 2006: 8)

The emergence of a single security paradigm embracing widely differing conflicts is stressed by Hornqvist who identifies:

"the law being stretched in two directions at once: the line between crime and acts of war has been erased, as has that between criminal offences and minor public order disturbances. This has led to the establishment of a broad field in which governmental and private institutions can collaborate and use force according to new principles." (2004: 31)

Three decades of neoliberal globalisation has exhausted the integrating role of the welfare state. The decreasing ability of even the strongest national territorial states to protect their citizens from economic and social inequality is part of the same global dynamic whereby weaker states fall apart and give rise to new wars of the type we have been discussing. In urban centres across the globe the middle classes and those in secure employment think less about how to guarantee social rights to minimum income, education, housing and health care to all citizens than about how to protect themselves from the risk of crime and disorder from the socially excluded: the unemployed, the poor, migrants and asylum seekers existing in the insecure labour markets and informal or illegal economies. These social groups have effectively made the transition from the status of welfare citizens to be guaranteed their social rights to that of the external threatening other. While housing business and shopping zones of large cities - led by the US - become preoccupied with an architecture of fortification (Davis 1990, 1998), state directed surveillance and crime prevention measures saturate the networks of civil society and most areas of social policy (Crawford 2006, Wood et al. 2006). The socially excluded are not simply the social basis of organised crime (work in the illegal economy, drug consumption in the industrialised north, drug growing and illegal migration in the global south) but they are the social threat per se: the sublime object of security whose constant risk of criminality and disorder must be managed and contained. It is this sea change in the social conditions of global capitalism that lies behind the militarisation of criminal justice.

The increasing salience of control of risk groups as a task for criminal justice encourages a shift away from the centrality of prosecution of individual offenders on the basis of evidence tested in court (what Shearing calls the retributive paradigm see Shearing 2001) towards forms of collective regulation control such as curfews, orders excluding groups from particular spaces, restrictions on behaviour in anticipation of possible criminal action: the security paradigm. As Hornqvist succinctly puts it:

"What happens when security forms the basis for the use of force in a society? At the most fundamental level, the focus is shifted to what a person might do instead of what a person has done. The central question to be asked in the context of a possible intervention is not ‘has this individual committed a crime?’ but, rather, ‘does this person constitute a risk?’ " (Hornqvist 2004: 37)

Such pre-emptive criminalisation applies legal restrictions to those as yet unconvicted of criminal offences while at the same time incapacitation extends constraint in the other direction through a regimes of permanent surveillance following completion of sentence (e.g. for convicted paedophiles) or the elevation of public protection to the main determinant of sentencing itself. (Feeley and Simon 1992, Garland 2001, Fitzgibbon 2000) Criminal justice begins the return to those more general tasks of managing and disciplining the 'dangerous classes' or dealing with powerful organised criminal enemies which are the basis of the armed citizenry and security paradigm versions of criminal justice (Lea 2002).

In the context of such developments, the application of the 'war' analogy to crime control becomes increasingly plausible. In the US, for the reasons elaborated by Steinert, 'war on drugs' and 'war on crime' are established discourses joined now by the 'war on terror'. It might be thought that war is, in such circumstances being deployed purely as metaphor, much as one might declare a 'war' on poverty or obesity. But the developments towards pre-emptive criminalisation make the war metaphor increasingly plausible as a description of reality. Lucia Zedner asks why the war metaphor has become such a recurrent theme in discourses about crime

"The language of warfare … is reflective … of the idea that it is an entire 'enemy population', rather than individual offenders, against whom security initiatives are targeted. The irony is that the promise of community safety and social solidarity is bought only at the cost of social exclusion." (Zedner 200: 211)

A 'war on terrorism' using methods of intrusive surveillance and pre-emptive restriction of the activities of members of groups perceived by the authorities as risk groups, can simply be added on. The crucial concessions as regards due process and civil liberties more generally, have already been made. A system which bans football supporters from travel to matches abroad on the grounds that they have known association with other supporters who carry criminal convictions for public disorder, or which bans, through the issue of Anti-Social Behaviour Orders, individuals from entering particular areas of a town or city on the grounds that they engage in behaviour which, in the words of the UK Criminal Justice and Public Order Act 1998 "causes or is likely to cause harassment, alarm or distress to one or more people who are not in the same household as the perpetrator." will have little problem with imposing restrictions on individuals who are suspected of terrorist activities or associations. Commenting on the inauguration of a new system of Control Orders under UK Anti-terrorism legislation in 2005, Shami Chakrabati, the director of the UK human rights organisation Liberty, commented succinctly.

"The presumption of innocence, like innocence itself, is more easily compromised than reclaimed. It seems to me that we would not be living with the chilling spectre of the anti-terror "control order" (indefinite punishment based on secret intelligence) if we had been more critical of his older cousin, the ASBO." (Chakrabati and Casey 2005).

Thus it is not simply, as many civil libertarians correctly assume, that legislation enacted to deal with the special case of terrorism will inevitably find its way into general criminal law and procedure[1], but that criminal justice legislation and security strategies already enacted and embedded in social policy, provide a favourable climate for more authoritarian measures. Criminal justice thus moves along the continuum towards warfare. It moves away from the focus on the criminal offender as the citizen entitled to civil liberties and due process until convicted, towards an 'enemy' to be contained and pacified. In this process of pacification criminalisation, increasingly in a pre-emptive form, becomes part of the arsenal, a weapon among others.

notes

[1] as with the reduction in the right to silence which began as a special feature of terrorist trials in Northern Ireland in 1988 and then enacted in UK law in 1994. (see Hillyard 1987, Zedner 2005)

Crime, War and Security: from the criminalisation of war to the

militarisation of crime control

© John Lea 2007