Towards A Victimology of State Crime (PDFDrive)

TOWARDS A VICTIMOLOGY OF
STATE CRIME
Millions of people have been victimized by the actions and omissions of states and
governments. This collection provides expert analyses of such victimizations across
the world, from Europe, the United States, and Africa to New Zealand and South
America. Leading scholars in the area of state crime describe the nature, extent, and
distribution of state crime victimization, as well as theoretical and practical paths for
understanding, explaining, and aiding victims of massive harms by governments.
Cases of state crime and state victimization are presented on Brazilian, Native
American, and New Zealand children; Somalian pirates; Columbian, South Afri-
can, and Bosnian civilians; United States immigrants; and war crime victimization
in World War II. Other chapters delve into formal and informal ways to address
victimization through the European Court of Human Rights, the International
Criminal Court, and provide analyses of justice processes around the world.
This anthology bridges the latest thinking, theory, and research in the fields of state
crime and victimology and provides a general resource concerning basic issues related
to victimization – particularly victims of state crime. As such, it fills a major gap in the
literature by providing the first text and scholarly book focused solely on a victimol-
ogy of state crime. This book is essential reading for undergraduates, postgraduates,
socio-legal jurists, and academics with an interest in state crime and victimology.
Dawn L. Rothe is an Associate Professor at Old Dominion University, US and

the Director of the International State Crime Research Center as well as the Direc-
tor of the PhD in Criminology Program there. She is the author or co-author of
six books and over seven dozen peer-reviewed articles and book chapters dealing
with the topics of state crime, state-corporate crime, crimes of globalization, and
international institutions of social control.
David Kauzlarich is Professor of Sociology at Southern Illinois University,
Edwardsville, US. He is the author of several books and articles on state crime,
criminology, and sociological theory. He has been given several honors for both
his teaching and research.
‘This book is long overdue. Rothe and Kauzlarich expose the most pervasive forms
of victimization, and have given voice to the millions of people that have been
victimized by states. States, since their inception, have had a monopoly on violence
and oppression. This book demands our attention.’
Rick Matthews, Professor of Sociology and Criminal Justice,
Carthage College, USA
‘Towards a Victimology of State Crime is a book long overdue in the evolving field
of state crime. Dawn Rothe and David Kauzlarich have assembled an outstanding
team of experts to advance our understanding of state violence and highlight the
victimization that is all too often glossed over or ignored in the state crime litera-
ture. By placing a spotlight on the experiences of victims of state crime and further
illuminating the causes and consequences of state-sanctioned violence, Rothe and
Kauzlarich have laid the foundation for significant progress in the empirical and
theoretical realms of explaining state criminality and victimization.’
Emily Lenning, Assistant Professor, Fayetteville State University, USA
‘State crime exacts a significant human toll; it destroys communities and burdens
entire generations. Yet criminologists have devoted very little attention to the
experience and struggle of state crime’s victims. Consequently, Towards a Victimol-
ogy of State Crime is a timely and important intervention. Its rigorous and stimulat-
ing range of international case studies – composed by leading scholars in the field
– will help push victimology debates in the right direction.’
Kristian Lasslett, Lecturer in Criminology, University of Ulster and member
of the International State Crime Initiative’s Executive Board, Ireland, UK
‘In pulling together this excellent collection of essays on state crimes and victimi-
zation from around the globe, Rothe and Kauzlarich have not only helped to fill
a gap in the existing literature, by connecting these two areas of criminological
theory and practice, but they have also provided a launching pad for navigating the
complexities of state crime victimization.’
Gregg Barak, Professor of Criminology and Criminal Justice,
Eastern Michigan University, USA
TOWARDS A
VICTIMOLOGY OF
STATE CRIME
Edited by Dawn L. Rothe and

David Kauzlarich
ROUTLEDGE
Routledge
Taylor & Francis Group
LONDON AND NEW YORK

First published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 selection and editorial material, Dawn L. Rothe and David Kauzlarich;
individual chapters, the contributors.
The right of Dawn L. Rothe and David Kauzlarich to be identified
as the editors of this work has been asserted by them in accordance
with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Towards a victimology of state crime /
edited by Dawn L. Rothe and David Kauzlarich.
pages cm
Includes bibliographical references and index.
ISBN 978–0–415–63900–2 (hardback)–
ISBN 978–0–203–08353–6 (e-book)
1. State crimes. 2. Victims of crimes. 3. Human rights.
4. Political atrocities. I. Rothe, Dawn, 1961– II. Kauzlarich, David.
HV6251.6.T69 2014
362.88–dc23
2013028565
ISBN: 978–0–415–63900–2 (hbk)

ISBN: 978–0–203–08353–6 (ebk)
Typeset in Bembo
by Swales & Willis Ltd, Exeter, Devon
CONTENTS
Illustrations vii
Contributors viii
Preface xii
PART I
State crimes, harms, and victimizations 1
1 A victimology of state crime 3

Dawn L. Rothe and David Kauzlarich
2 The victimization of street children in Brazil 15

Fernanda Fonseca Rosenblatt
3 Accumulating atrocities: capital, state killing and the

cultural life of the dead 33
Tyler Wall and Travis Linnemann
4 The victimization of children in state-run homes in

New Zealand 46
Elizabeth Stanley
5 Somali pirates: victims or perpetrators or both? 66

Victoria Ellen Collins
6 Victimizing the undocumented: immigration policy and

border enforcement as state crime 87
Raymond Michalowski and Lisa Hardy
vi Contents
7 “Death flies down”: the bombing of civilians and the

paradox of international law 110
Ronald C. Kramer and Amanda Marie Smith
8 State crime and the re-victimization of displaced populations:

the case of Haiti 131
9 Victimisation during and after war: empirical findings

from Bosnia 149
Stephan Parmentier and Elmar G.M. Weitekamp
PART II
Responses to state crime victimization 171
10 European Court of Human Rights: accountability to whom? 173

Isabel Schoultz
11 The victims of the colombian conflict and restorative justice 191

Isabella Bueno
12 Institutional and structural victimisation: apartheid South Africa 212

Robert Peacock
13 Controlling state crime and the possibility of creating

more victims 225
Jeffrey Ian Ross and Peter Grabosky
14 Can an international criminal justice system address

victims’ needs? 238
Dawn L. Rothe
Index 250
ILLUSTRATIONS
Figures
9.1 Age distribution total sample – age groups and frequencies 157
9.2 Highest level of education completed at the time of the survey 158
9.3 Religious affiliation 159
9.4 High physical, material and emotional suffering during and after
the war 164
14.1 A self-memorial of atrocity taken May 2011 in Dubrovnik, Croatia 245
Tables
5.1 Number of attacks as reported by the international maritime
bureau 1991–2012 69
5.2 Number of crew injured and killed as a percentage of total attacks in
Somalia 70
9.1 Membership in victim organisations or war veteran associations 159
9.2 Direct and indirect victimisation experiences 160
9.3 Pearson correlations between victimisation experiences 162
9.4 Active participation in the war 163
9.5 Self-perceived (subjective) suffering (physical, material, emotional)
during and after the war 164
9.6 Return after forced displacement 166
10.1 European Court judgments relating to Sweden between the years
2000 and 2010 180
14.1 Case-specific victim data 243
CONTRIBUTORS
Isabella Bueno is a Colombian researcher at the Leuven Institute of Criminology.

She obtained a bachelor’s degree in Law as well as a master’s degree in International
Law from the University of La Sorbonne, in Paris. Since 2008 she has been work-
ing on a research project on mass victimization and restorative justice in Colombia.
The aim of project is to deepen our understanding with regard to the applicability
of restorative justice in a transitional justice context of ongoing conflict.
Victoria Ellen Collins is an Assistant Professor in the School of Justice Studies at

Eastern Kentucky University. She recently completed her dissertation, in which
she examined the processes involved in creating, implementing, and enforcing
policy on maritime piracy. Her research and teaching interests include state crime,
victimology, white-collar crime, transnational crime, and violence against women.
Some of her recent work has appeared in journals such as International Criminal Law
Review, Critical Criminology, Contemporary Justice Review, and The Australian and New
Zealand Journal of Criminology.
Peter Grabosky is a Professor in the Regulatory Institutions Network, Research

School of Pacific and Asian Studies, Australian National University, and a Fellow
of the Academy of the Social Sciences in Australia. He holds a PhD in Political Sci-
ence from Northwestern University and has written extensively on criminal justice
and public policy. His general interests are in organized crime, cyber crime and,
more generally, in harnessing resources outside the public sector in the furtherance
of public policy.
Lisa Hardy is a medical anthropologist and Assistant Professor of Anthropology

at Northern Arizona University with over a decade of experience as a qualitative
researcher focused on health policy and health disparities. Her work has appeared
Contributors ix
in publications such as the American Journal of Public Health and Public Health Reports
as well as in numerous evaluations of health policy and health practices.
David Kauzlarich is Professor of Sociology at Southern Illinois University

Edwardsville (SIUE). His main areas of interest are state crime, music and society,
victimization, and critical sociological theory. He has received several top teaching
and research awards, including honors from SIUE and the American Society of
Criminology’s Critical Criminology Division. He is currently Editor-in-Chief of
Critical Criminology: An International Journal.
Ronald C. Kramer is Professor of Sociology and Director of the Criminal Jus-

tice Program at Western Michigan University in Kalamazoo, Michigan. His books
include: Crimes of the American Nuclear State: At Home and Abroad (with David Kau-
zlarich); State-Corporate Crime: Wrongdoing at the Intersection of Business and Govern-
ment (with Raymond Michalowski); and State Crime in the Global Age (edited with
William J. Chambliss and Raymond Michalowski). Dr. Kramer is a recipient of
the Lifetime Achievement Award from the Division of Critical Criminology of
the American Society of Criminology. His most recent research focuses on climate
change as state-corporate crime.
Travis Linnemann is Assistant Professor of Sociology and Criminal Justice at Old

Dominion University. His research concerns the cultural politics of drug control
and the reciprocities between the “war on drugs” and “war on terror.” His work
has appeared in the academic journals Critical Criminology, Theoretical Criminology,
Crime Media Culture and British Journal of Criminology, among others.
Raymond Michalowski is a sociologist and Arizona Regents Professor of Crimi-

nology at Northern Arizona University. His published works include books on
state crime, state-corporate crime, criminology, and the use of ritual in the political
reconstruction of memories of war, as well as articles on the political economy of
crime and punishment, immigration policy and immigration conflict, environmen-
tal crime, and justice practices in socialist Cuba.
Stephan Parmentier teaches sociology of crime, law, and human rights in the
Faculty of Law of the University of Leuven (Belgium) and has served as the head
of the Department of Criminal Law and Criminology (2005–9). In July 2010 he
was appointed Secretary-General of the International Society for Criminology and
he also serves on the Advisory Board of the Oxford Centre of Criminology and
on the Board of the International Institute for Sociology of Law (Oñati). He is co-
editor (with Jeremy Sarkin and Elmar Weitekamp) of the international book series
on Transitional Justice published by Intersentia, Antwerp. His research interests
include political crimes, transitional justice and human rights, and the administra-
tion of criminal justice. Between 1999 and 2002 he served as the vice-president of
the Flemish section of Amnesty International.
x Contributors
Robert Peacock is a Vice-President of the World Society of Victimology and Aca-

demic leader of the Criminology and Forensic Studies Cluster at the University of
Kwazulu-Natal, South Africa. Since the apartheid years in South Africa he has been
working actively in the field of victimology, with child justice and institutional
victimisation as particular focus areas. Areas of expertise refer to the victimisation
of children deprived of their liberty, street/community children, transitional justice
and the victimology of international crimes.
Fernanda Fonseca Rosenblatt is a Lecturer in Criminal Law at the Catholic Uni-

versity of Pernambuco, Brazil, from which she has received a three-year sabbatical
to undertake her doctoral studies. She is currently pursuing her doctoral degree at
the Oxford University Centre for Criminology, UK. She is also currently a mem-
ber of the Executive Committee of the World Society of Victimology.
Jeffrey Ian Ross, PhD is a Professor in the School of Criminal Justice, College of
Public Affairs, and a Research Fellow of the Center for International and Com-
parative Law at the University of Baltimore. He has researched, written, and lec-
tured primarily on corrections, policing, political crime (especially terrorism and
state crime), violence (especially criminal, political, and religious), global crime and
criminal justice, and crime and justice in American Indian communities, for over
two decades. Ross’s work has appeared in many academic journals and books, as
well as in popular media. He is the author, co-author, editor, or co-editor of sev-
eral books, including most recently The Globalization of Supermax Prisons (Rutgers
University Press, 2013).
Dawn L. Rothe is an Associate Professor in the Department of Sociology and

Criminal Justice at Old Dominion University. She is also the Director of the
International State Crime Research Center and of the PhD in Criminology Pro-
gram at Old Dominion University. In addition to near four dozen peer-reviewed
articles, Rothe is the author or co-author of six books, including The Realities
of International Criminal Justice (2013, Martinus Nijhoff Publishers/Brill, co-edited
with James Meernik and Þórdís Ingadóttir); State Crime, Current Perspectives (2011,
Rutgers University Press, co-edited with Christopher Mullins); and The Crime of
All Crimes: An Introduction to State Criminality (2009/2010, Lexington/Rowman &
Littlefield).
Isabel Schoultz is a PhD student in the Department of Criminology at Stockholm

University, Sweden. She has published work on formal controls of the state, inter-
national criminal justice, the concept of state terrorism and police efforts against
organized crime.
Amanda Marie Smith is a doctoral student in the Department of Sociology at

Western Michigan University. Her areas of interest include research methods,
state-corporate crime, comparative criminology, and institutional anomie theory.
Contributors xi
Currently, she is working on investigating social institutional differences and crime

rates between countries with qualitative comparative analysis.
Elizabeth Stanley is Senior Lecturer in Criminology at Victoria University of Wel-

lington, New Zealand. Her current research and teaching focuses on state crime,
human rights, transitional justice, social justice, and detention. She has recently
published (with Jude McCulloch) State Crime and Resistance (Routledge).
Tyler Wall is an Assistant Professor in the School of Justice Studies at Eastern

Kentucky University. His research focuses on the cultural-aesthetic, political-
economic, and spatial dynamics of state power and violence, security politics, and
everyday life, especially in the context of the “war on terror.” He is particularly
interested in exploring the ways in which “homefront” and “battlefront” geogra-
phies are assembled through logics and practices of security, capital accumulation,
and (neo)colonial pacification. He has published his work in a number of academic
journals.
Elmar G.M. Weitekamp studied social work at the Hochschule Niederrhein in

Mönchengladbach, Germany and criminology at the University of Pennsylvania
in Philadelphia, USA. He is the organizer and co-director of the annual course
Victimology, Victim Assistance and Criminal Justice in Dubrovnik as well as one of
the founders of the African Victimology course. Together with Jeremy Sarkin and
Stephan Parmentier he is the editor of the book series Transitional Justice published
by Intersentia in Antwerp, Belgium.
PREFACE
This collection of scholarly essays on state crime victimization represents a con-

tinuation of years of collaboration between the Editors themselves and many of
the contributors. Several of us have spent significant amounts of time with one
another over the years discussing, debating, researching, and theorizing on the top-
ics covered in this anthology. Along the way we have marveled at the quick pace
of growth in state crime studies as well as what appears to be a much greater accept-
ance of the concept of state crime in criminology more generally. It is also thrilling
to see an increasing number of younger scholars and graduate students taking up
the challenge to study this most injurious and destructive form of crime. The chap-
ters in this book reflect this multi-generationality as well as the newer intellectual
relationships that have developed on a truly global scale. Scholars from all over the
world are now solidly involved in the study of state crime and victimization and
this has led to even greater vitality and richness in the field.
Understanding state crime and victimization has indeed blossomed into a global
theoretical, empirical, and praxis-oriented endeavor proudly reflected in the con-
tent to come in this volume: Stanley provides us with a thorough and methodo-
logically strong portrait of child abuse in state-run homes in New Zealand while
Rosenblatt also explores child victims in Brazil; Kramer and Smith provide deep
historical analysis of victims of aerial bombing by the U.S. and in doing so elucidate
the relevance of international law; Michalowski and Hardy bring to light the vic-
timization of undocumented Mexican and other Latinos immigrants in the United
States; Parmentier and Weitekamp provide a meticulously developed portrait of
victims of war crimes and human rights abuses in Bosnia; Collins examines cases
of victimization in Haiti as well as the complicated relationship between victim
and offender in Somalia; Wall and Linnemann carve out a creative and powerful
interpretation of the victims of the U.S. war on Iraq; Peacock examines social jus-
tice issues in South Africa while and Bueno and Diaz explore restorative justice for
Preface xiii
victims in Columbia; Schoultz interrogates the problems and realities of the Euro-
pean Court of Human Rights; Ross and Grabosky highlight how attempts to help
victims may be counterproductive; and Rothe raises fundamental questions about
the ability of international criminal justice to successfully address victimization.
We deeply thank the contributors to this book for their incisive analyses as
well as their timely cooperation. We also thank Tom Sutton at Routledge for the
opportunity to produce a long-needed book-length substantive contribution to the
fields both of victimology and state crime studies. Finally, we thank our families
and close friends for their support. Dave especially thanks Elaina, Jake, and Sandy.
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PART I
State crimes, harms,

and victimizations
1
A VICTIMOLOGY OF STATE
CRIME
Dawn L. Rothe and David Kauzlarich
Introduction
As the fields of state crime and victimology mature and grow, it is more important
than ever to consider how victims and offenders differ from one type of crime and
circumstance to the next. Traditional victimological analysis was developed well
prior to the point in time that state crime studies became a major subfield of the
study of white-collar crime. Both state crime scholars and victimologists have much
to learn from one another, and in this chapter we develop some ideas to further
explore and encourage this intellectual connection between the fields.
The realm of victimology and state crime

The field of victimology emerged in the 1940s after World War II. Hans von Hentig
and Benjamin Mendelsohn are most often cited as being the “fathers” of victimol-
ogy with their early research on victims and street crime. The concept of “who”
to study as victims included a call for a specific victimology (Hentig 1948) – crime
victims as defined by criminal law, and a general victimology – those involved in
accidents, crimes, and natural disasters (Mendelsohn 1956, 1974). Overall, the early
works by Hentig, Mendelsohn and others, including Marvin Wolfgang (1958),
suggested that the victim’s behavior and attitude were part of the causal explanation
for their victimization. Consequentially, victims shared the responsibility of specific
crimes, including homicide. Beginning with the late 1970s, some victimologists
began to focus on victims of “political crimes,” including the mass disappearances
of citizens in several countries in Latin America (Schafer 1977) as well as “structural
victimization” (Nagel 1974). During the 1980s, other victimologists attempted to
move the field to a broader focus including victims of human rights and abuse of
power (Bassiouni 1988; Elias 1985; Separovic 1985). This was also the time when
4 Dawn L. Rothe and David Kauzlarich
a call for a radical victimology approach was promoted. This included “victims of
police force, the victims of war, the victims of the correctional system, the victims
of state violence, the victims of oppression of any sort” (Quinney 1972: 315).
However, as with criminology during this timeframe, the general focus remained
on victims of street crime or what Bienkowska (1992) called penal victimology
(Mawby and Walklate 1994). While still marginal within the discipline, over the
course of the past three decades, some victimologists have expanded their focus
to include the victims of natural disasters, war, and genocides. For example, the
concept of stepwise processes of victimization has been usefully applied to the
preparation of victims during the genocide by Nazi Germany (Kirchoff 2010). In
essence, a stepwise process reflects the gradual preparation involved in mass vic-
timizations. This includes beginning with unequal protection and dehumanization
of a group. From this, an initial selection of victims (e.g., adult males) occurs that
facilitates “normalness” with the crimes and violence which can then be expanded
to include larger targeted populations (e.g., females and children). This removes an
individual’s “moral calculi” from the act of violence. Such a pattern of preparation
is often seen in cases of human rights violations. Ironically, the “father” of white-
collar crime, Edwin Sutherland, was perhaps an earlier victimologist than either
von Hetig or Mendelsohn as his first edition of Criminology included a chapter
titled “The Victims of Crime” (Sutherland 1924: 62–72). Yet, relatively few crimi-
nologists or victimologists note this. Instead, he is generally credited for his theory
of Differential Association and as the first scholar to expand criminology beyond
criminal law violations to include white-collar crime.
Sutherland’s call for criminologists to expand their attention to include white-
collar crime – violations of civil regulatory law – provided a much-needed long
and historical debate over what is a “crime” (e.g., regulatory law, human rights,
domestic criminal law, international public law, or social harms) and who can
commit a criminal act (e.g., individuals, corporations, or states). This call for an
expanded standard is at the heart of the field of state crime. The field of state
crime studies is typically seen as having emerged from William Chambliss’ 1989
American Society of Criminology Presidential address on state-organized crime.
Exploring crimes such as piracy and smuggling, Chambliss showed how states
can be crucial in the organization and support of activities that violate their own
laws and international laws when doing so fulfills their broader political and eco-
nomic objectives. A number of criminologists, particularly critical criminologists,
quickly adopted the concept, broadening and enriching the field (Barak 1991;
Friedrichs 1998; Tunnell 1993). Their early work focused not only on crimes
tacitly supported or organized by a sovereign polity, but also on actions commit-
ted on behalf of states themselves. However, the early research on state crimi-
nality was plagued by definitional issues and generated much debate regarding
whether the individual or the state (organization) was culpable for acts deemed
state crime and what standards should be used to define state criminality. These
two contested areas cut to the core of the field of criminology in general, thus
it was not surprising that this debate influenced the early development of the
A victimology of state crime 5
field, and in some cases continues today. Regardless of the remaining contentious
issues associated with standards and definitions, since the onset of criminological
inquiry concerning state criminality began, the field has grown exponentially.
For example, literature has been produced on state crime with topics ranging
from the U.S. invasion of Iraq (Kramer et. al. 2005), the illegal use of and threat-
ened use of nuclear weapons (Kauzlarich and Kramer 1998), the on-going geno-
cide in Darfur (Rothe and Mullins 2007), crimes against humanity in Uganda
(Mullins and Rothe 2008), the U.S. role in and lack of response to Hurricane Kat-
rina (Faust and Kauzlarich 2008), to the many cases of state-corporate crime such
as the Challenger disaster (Kramer 1992; Vaughn 1996), Imperial Foods, ValuJet
cases (Mathews and Kauzlarich 2000), and more recently cases involving Hal-
liburton (Rothe 2006a) and Abu-Ghraib (Rothe 2006b). Additionally, there are
now two comprehensive texts on state crime, Penny Green and Tony Ward’s
(2004) State Crime and Dawn L. Rothe’s (2009) State Criminality: The Crime of
All Crimes, and six edited anthologies on state crime, including State Crime and
Resistance, edited by Elizabeth Stanley and Jude McCulloch (2012); State Crime in
the Global Age, edited by William Chambliss, Raymond Michalowski and Ronald
Kramer (2010); State Crime, Current Perspectives, edited by Dawn L. Rothe and
Christopher W. Mullins (2011); and State-Corporate Crime: Wrongdoing at the Inter-
section of Business and Government, edited by Raymond Michalowski and Ronald
Kramer (2006). Additionally, John Hagan’s (2010) Who Are the Criminals? The
Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan examines both
state policies towards street crime as well as acts of state crime within and beyond
the borders of the United States. Scholars of state crime have also devoted signifi-
cant energy to discussing the issues of control in relation to state crime including
states’ various domestic responses to their own criminality (Ross 1995, 2000) to
international responses and controls (Rothe and Mullins 2006a, 2006b, 2011).
Nonetheless, relatively speaking, the victims of state crime remain largely ignored
as the focus over the course of the past two decades has primarily been on the
etiological and enactment factors and controls, save for a limited number of articles
or book chapters dealing with victims of international crimes (Letschert, Have-
man, de Brouwer and Pemberton, 2011). The exception to this are two articles
by David Kauzlarich, Rick Matthews, and William Miller (2001) titled “Toward
a Victimology of State Crime” and (2003), “A Complicity Continuum of State
Crime,” that propose a typology of victims of state crime. Previously we noted
that from the onset there was, and to some degree remains, a definitional debate
surrounding state crime. At core, the standard of defining state crime will impact
the subsequent defining of victims of state crime. As noted by Kauzlarich et al.
(2001: 175), “An important task in developing a victimology of state crime is to
enumerate the victims, a task hindered by the lack of a uniform definition of state
crime.”
Consequentially, the following section provides a brief overview of this debate
prior to our discussion of its impact on how victims are operationalized, included
in or excluded from research.
Returning to the definitional quagmire

The idea of a state being criminally liable was met with significant resistance. There
were those criminologists that denied state criminality was possible. However,
within the international legal arena, the notion of a state as an actor that could be
held accountable was already well underway as the concept of a state as an entity
possessing individual rights and subject to criminal liability emerged back in the
mid 1900s. On the other hand, scholars who supported the idea of state crimi-
nality were divided upon the standards to be used to define such acts as criminal
between those who favored a legalistic frame and others who favored a broader
frame ranging from social harms to human rights. The tensions and debates over
defining state crime, however, reflect a broader debate within criminology itself.
Utilization of state-produced legal codes has long been the stated and unstated
norm. Such a reliance on state-produced definitions has caused tensions within
street crime and white-collar crime studies, with critically orientated criminolo-
gists rejecting state-produced definitions. The political nature of law production
has long been the main rationale for this rejection, given that one cannot separate
the nature of the political process that guides legislatures (and legislators) from the
legislation produced. Further, states have an inherent drive to fulfill their own self-
interest and not define harmful and problematic behavior as criminal (especially
their own).
Standards
The debates over the definition of state crime go beyond merely critiquing the
source or the substance of a given classification as alternative formulations were
put forth. For example, in 1970, Herman and Julia Schwendinger suggested using
a humanistic approach that would draw from objectively identifiable harms to
humans and violations of human rights as the core definition of crime (Sch-
wendinger and Schwendinger 1970). Others have advocated that crimes are any
socially injurious actions, regardless of the actor in question. Still some scholars
have advocated that state crime should be defined by a social audience that rec-
ognizes the act as deviant. What’s more, some criminologists have called for the
abandonment of the concept of crime entirely in favor of zemiology, the study
of harm, thus, a social harm standard (Hillyard, Pantazis, Tombs, and Gordon,
2004). In general, two positions on standards to be used to classify state actions
as criminal remain within the broader definitional debate amongst scholars of
state crime: crime as a social harm definition and a legalist approach. The legal-
ist approach includes a state’s own domestic law as well as the broader umbrella
of international public law (customary law, treaties, charters, and the newly
emerged criminal law) (Rothe 2011). This framework includes other approaches
and standards such as human rights and social and economic harms. Furthermore,
international criminal law covers individuals as well as states, thus resolving any
enduring reservations of the state as actors versus individuals. Additionally, the
legalists’ use of extant statute identifies an external reference point, while other
approaches are said to use a more amorphous and relativistic definitional rubric.
Those that accept the use of a legalistic standard suggest that it adds legitimacy
to the field’s definition. Legalists argue that if a critique of state crime studies
is that they are not truly scientific but rather politically inspired diatribes, estab-
lishing the illegality of such actions under a legal code is a fitting response to such
critiques. Nonetheless, this approach has been criticized as another example of
continuing to use law as a “tool of the state” to control the very entities that cre-
ate it (Rothe 2011). The social harm approach begins with the realization that
crime has no ontological reality and it is subjectively defined by states within the
context of broader issues of power, and political and economic interests. In the
case of crimes of the powerful, harmful activities are rarely defined as criminal.
Many acts and behaviors that cause serious harm are not part of the domes-
tic or international criminal law, thus being omitted by those using a stricter
rubric such as the legalist standard. Those advocating this framework suggest
that harm be defined as physical, financial and economical, psychological and
emotional, sexual, and cultural. This includes the observable forms of harm, but
also those seemingly more “natural” including death and illness caused by star-
vation, untreated treatable illnesses due to lack of medical care, those who lose
their traditions and communities due to economic displacement and relocation,
and a host of other ways millions of humans suffer and experience harm as a
result of state policies and actions. Others have tried to define crime in terms
of “blameworthy harm” (Agnew 2011). Most importantly, a harms approach
focuses on the origins of the harm rather than merely the actors or states involved
or the act itself. This is not to say the other approaches do not do this in their
theoretical and analytical assessments; however, those working from a social harm
perspective begin with this focus. There are obviously strengths and weaknesses
in using either standard to determine what is to be considered a state crime; this
is especially true when we consider the impact that each has on defining victims
of state crime. Consider that, if we use a legalistic framework, many victims
of state crime would be omitted from research, leaving only those that can be
identified through direct violations of domestic or international law – making a
causal link to the act a condition). On the other hand, using a social harm stand-
ard can broaden the scope to include victims directly and indirectly harmed by
states’ actions (e.g., victims of state immigration policy). As noted by Kauzlarich
(1995: 39), state crime victims can include “[i]ndividuals or groups of individuals
who have experienced economic, cultural, or physical harm, pain, exclusion, or
exploitation because of tacit or explicit state actions or policies which violate law
or generally defined human rights.” However, it should be noted that if too broad
of a definition is used, one could, hypothetically, include nearly everyone within
the contexts of victims of state crime, leaving the notion of victim meaningless.
Here, the work of victimologists and their refinement of definitions of victims
can be usefully drawn on to show the importance of a standard for defining state
crime.
Who are victims and who decides?

Defining a victim of state crime is dependent upon who is doing the defining. A
victim is culturally defined and a person’s social reality is subjective – one individual
may or may not self-label as victim where another, in the same circumstances, may.
This is further compounded when the labels are externally decided and applied. As
we previously noted, early victimologists defined victims within three categories:
general (all victims from crime to natural disasters), special (victims of crimes codi-
fied by law), and broader (human rights and abuse of power). Beyond this, various
definitions have been put forth. Consider what Strobl (2010) offers as a constructiv-
ist concept of victims: 1) an identifiable event; 2) negative evaluation by the victim;
3) an uncontrollable event; 4) attributable to a personal or social offender; and 5) a
violation of a socially shared norm. Others suggest that victimization be limited to
groups or individuals forced “to cope with important potentially uprooting events
that can be actuated against him or her by other humans. Omissions are deemed
equivalent to active deeds provided there is a duty to be active” (Shoham et al.
2010: 113). Within state crime research, this would resonate with the concept of
“crimes of omission.” Others have suggested victimization must be human made
and against the will of the victim (Kirchoff, Kosovski, and Schneider 1994). This
coincides with the legalistic standard as well as human rights within the state crime
literature. Victimization must also be socially recognized. Here, this caveat would
coincide with Green and Ward’s (2004) suggestion that a harmful act be defined
as such by a public audience. Stitt and Giacopassi (1993: 67) utilize components of
these and suggest that corporate crime victimization includes individuals or groups
who “(a) have not given informed consent, (b) are incapable of making a reason-
able judgment, and (c) are forced or deceived into participation in a situation that
results in adverse consequences to them.” This, however, fails to acknowledge
that, as with early victimological studies, there is an assumption that victims play
an important role in their victimization, whether that is through being “incapable
of making a reasonable judgment” or through active precipitation. While in some
cases victims may play an important role in their own victimization, there are oth-
ers where this would hardly reflect accurately the processes of victimization, most
notably mass victimization. Consider the processes of stepwise preparation in cases
of genocide or the use of child soldiers, massive and systematic rape during con-
flict, or even cases of forced disappearances and torture. Having a solid definitional
standard of state crime is critically important, given that it can exclude victims
from being recognized as such. While imperfect, we sustain the definition of state
crime and state crime victims by Kauzlarich et al. (2001) because it incorporates
the best of the legalistic, human rights, and social harms standpoints. This defini-
tion encapsulates most of the substance and spirit of the criminological literature
on the varieties of state crime and combines the three typologies within the field of
victimology. Having defined state crime and victims, there are other general issues
associated with victim recognition. This includes the labeling processes, or lack
thereof, as well as methodological and theoretical concerns.
Labeling
We noted that the process of labeling is complex: from self-labeling to exter-
nal labels that are applied informally and formally by audiences, researchers, the
media, politicians, and institutions of social control. Each of these has an impact on
whether an individual is recognized as a victim and/or able to receive any recourse
to their victimization. With state crime victims, these issues are especially signifi-
cant. Consider that in cases of state crimes of omission or the broader category of
social harm (e.g., institutionalized classism and racism) victims may not even rec-
ognize they have been victimized. Further, given the resources of a state, discourse
can change the public view of a victim to one of a criminal. This is especially so in
cases of whistleblowers who threaten a state’s legitimacy or power and victims of
states seeking legitimacy for their criminality. Additionally, discourse surrounding
a situation leading to victims may be altered, presenting the victims as unworthy
and undeserving of sympathy and/or the label. For example, consider the victims
of the war in Iraq, those of the shock and awe invasion, or those swept up in mass
raids seeking “terrorists” that end up in a black-hole such as Guantanamo or Abu
Ghraib. These victims become the criminals, masking the realities of the victimiza-
tion. Furthermore, victims may or may not be recognized as such by formal insti-
tutions of control. With crimes of the state, this would necessarily include control
mechanisms at the domestic and international levels. Consider, for instance, the
victims of the Rwandan genocide at the state level, where the recognition is of
Tutsis as victims. Yet, many Hutu were also victimized. Likewise, international
institutions of control remain selective in whom they define and label as a victim.
This has serious ramifications for victim recourse as well as victim healing and accu-
rate accounts of facts and subsequent history of their victimization. Additionally, it
must not be overlooked that in many cases the victim can be rightly labeled as vic-
tim/offender. Here again, looking at Rwanda, testimony of various Hutu highlights
their perceptions of themselves as both perpetrator and victim. In many cases, the
processes of labeling or lack thereof can result in new forms of victimization and/or
revictimization. The complexities and multiple layers of seeing oneself as a victim,
accepting such a label, being given a victim label by others, exclusion or inclusion
as a victim in mass atrocity settings, facilitates another problem for victimologists of
state crime: how can we measure and know the totality of victimization?
A method for a victimology of state crime?

A key issue associated with the study of state criminality is to know the actual
numbers of victims (Bijleveld 2008). As we know with street crime, there is likely
a massive amount of crime that never comes to the attention of informal or formal
social control agents. Yet, criminologists attempt to get beyond this and obtain esti-
mates that are more reflective by employing – albeit imperfect – multiple venues
available (self-report surveys, the U.S.’s National Crime Victimization Survey, and
the British Crime Survey are well-known examples). However, with international
crimes, this “dark” figure is a “doubly-dark figure” (Bijleveld 2007: 4). In part,
this can be due to a state’s unwillingness to disclose the information for multiple
reasons, victims’ desires to remain silent, lack of survivors, lack of pre-conflict cen-
sus data, lack of post-conflict citizenry data, significant population displacements,
and a score of other variables. As such, criminologists must attempt to use multiple
methods to make the doubly-dark figure of the crimes, at best, a dark figure of the
crimes. The important task of counting the precise number of victims remains a
laborious task, yet not only is it important but it also speaks to the difficulty of using
quantitative methods. For example, the death toll in Darfur has been estimated to
be between 60,000 and 160,000. However, the Coalition for International Justice1
reports estimates of near 400,000. The number of victims from the genocide in
Rwanda is estimated to be between 500,000 and 1,000,000. The mortality rate of
Pakistanis due to the conflict in 1971 varies by a three-fold variation, between 1
and 3 million, and estimates of the death toll in Congo between 1964 and 1965
vary ten-fold. As Bijleveld (2007: 6) noted:
For Congo it was estimated that mortality due to preventable causes such
as malnutrition and infectious diseases was many times the so-called “direct
mortality” . . . famine and other preventable disasters are often used by gov-
ernments as a cheap and efficient way to get rid of certain segments of the
population.
During the twentieth century, it has been suggested, 170 million people were
killed in “conflicts of a non-international character, internal conflicts and tyrannical
regime victimization” (Bassiouni 1996: 2). Since the beginning of the twenty-first
century there have been hundreds of thousands more killed, maimed, tortured,
displaced, and/or raped. For those who use a more expansive definition of state
criminality, the harms are even more insurmountable when we consider those
generated by states omitting to alleviate specific conditions, or to respond to natural
disasters, cases of institutionalized racism, ethnoism, classism, and a host of other
injuries. As you can see, figures for victims display enormous variance. There are
various forms that can be used to obtain statistics, no different than those used for
traditional street crime, namely, victim surveys. These have been used for estimat-
ing mortality. Yet, in situations of these types of crime, significant portions of the
population may have fled the country or may reside in refugee centers abroad,
making it more difficult to account for the doubly-dark figures; or, if entire families
were killed, mortality would be underestimated. An additional barrier to obtaining
exact numbers or using victimization surveys is that the inability to go often to the
regions affected if the conflict is on-going. Security issues can affect access to areas
and thus the representativeness of the total numbers of victims. Further, some vic-
tims may not be willing to open up and share their experiences; this is particularly
the case with victims of genocidal rape. Additionally, many victims may not know
or perceive themselves as victims of state crime. Others may self-identify as such
but be denied the status through efforts to ensure state legitimacy and to cover state
criminality. Regrettably, the true numbers of victims of state crime will remain a
“doubly-doubly-doubly” dark figure that is really beyond what most of us could
comprehend.
Theory
Theories of victimization, relatively speaking, have been developed for and applied
to victims of street crime. There are four that dominate the victimological research:
1) three-fold model; 2) routine activities; 3) lifestyle exposure theory and; 4) devi-
ant place theory. The three-fold model suggests the conditions that support crime
explain victimization. This includes precipitating conditions, predisposing factors
of the victims, and lifestyle (Kirchoff 2010). The routine activities model assumes
victimization occurs when three conditions are present: a motivated offender, suit-
able target, and lack of capable guardian (Cohen and Felson 1979). The lifestyle
exposure theory states that an individual’s regular interests and patterns of behavior
will determine the propensity of victimization mediated through exposure and
association of others (Kennedy and Forde 1990). Deviant place theory, drawn from
sociological studies of deviance, suggests that the greater exposure to high-risk areas
increases the likelihood of being victimized. While these theories may provide
some insight into victims of street crime and precipitating factors, they do not pro-
vide much explanatory power for victims of state crime. This is especially so given
the vast types of victimization that occur through acts of omission and commission.
The stepwise approach does illustrate the gradual processes associated with some
forms of mass victimization such as genocide; yet, this too does not fully explain
other forms of state crime victimization. More recently Rafter and Walklate (2012:
517) have suggested that the processes of becoming a victim can be considered as
“victimality” “to denote the potential for becoming a crime victim” and this can be
applied to victims of genocide and other atrocity crimes. This is not a static concept
as many of the victim precipitation models were, as Rafter and Walklate recognize
victimality would fluctuate over time, as happened with the Armenian genocide
case they drew on to illustrate the utility of the concept and typology. Admittedly,
the literature within the field of state crime, while theoretically driven in terms of
crime causality, lacks any type of model to explain the victimization of individuals.
We have great suspicion that there will not be a satisfactory general theory of state
crime victimization any time soon. After all, the various types of genocide, political
oppression, wars of aggression, crimes against humanity, human rights violations,
or even institutionalized racism, classism, and ethnoism, or acts of omission involve
a very broad range of conditions, in/actions, actors, and circumstances that would
likely require a localized understanding rather than a grand theoretical model of
victimization. At this point in the development of victimology and state crime it is
better to recognize the various forms of state crime victimization and within each
similar typology to look for patterns, trends, and explanatory factors. This could
mean a restricted set of theories for crimes of omission or commission, genocide,
and so on.
Conclusion
As we discussed in the Preface to this volume, many of the issues raised in this intro-
ductory chapter are addressed in different ways in the contributions to the volume.
Undoubtedly, readers will see the difficulties associated with precise definitional
and conceptual categories of state crime victimization, measuring the relevant phe-
nomena, and the tension between restricted and general explanations of the varied
instances of state crime and the associated experiences of victimization. Our sim-
ple goal here is to begin a discourse that recognizes the importance of inclusive
victimological approaches to state crime and the need to merge the knowledge
within the fields of state crime, supranational criminology, critical criminology,
and victimology.
Note
1 The Coalition for International Justice is a Washington-based non-governmental organ-
ization that was hired by the United States Agency for International Development to
try to determine whether the killing in Darfur amounted to genocide. The Coalition
also concluded that 142,944 people may have been killed by government forces or allied
militias, which were the main groups ravaging the civilian population.
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2
THE VICTIMIZATION OF
STREET CHILDREN IN BRAZIL
Fernanda Fonseca Rosenblatt
Introduction
Brazil’s economy is currently the seventh largest in the world and the top economy
in South America, with a Gross Domestic Product of US$2.2 trillion in 2011
(World Bank 2013). Over the last decade, along with stable economic growth, the
country has also benefited from improvements in social wellbeing – particularly
through a combination of multi-billion dollar social welfare programs, such as Bolsa
Família (Family Grant), which has been internationally praised as a model of effec-
tive social policy (Rizzini et al. 2011). In this context, between 2003 and 2009,
the country’s poverty rate fell markedly, from 21 percent of the population to 11
percent (World Bank 2013). On the other hand, throughout the first decade of this
century, several new policies – such as legislation introducing tighter controls on
firearms and disarmament campaigns, for example – were implemented in Brazil
to reduce violent crime levels. These measures are said to have contributed to the
decrease in homicide rates in São Paulo, Brazil’s most populous city – which, from
2000 to 2010, has seen a remarkable drop in homicides by 63.2 percent (UNODC
2011; Waiselfisz 2011).
Despite such important advances, poverty is still a major problem in Brazil. In
fact, in 2010, Brazil ranked third among the countries with the highest levels of
income inequality (Rizzini et al. 2011). During the same year, there were 8.9 mil-
lion people living in extreme poverty in Brazil – that is, earning less than US$78 a
month (Bush and Rizzini 2011). In 2008, 36 percent of under-18-year-olds were
living below the poverty line – that is, had a per diem, per capita income of less
than US$4.00 (Bush and Rizzini 2011). The country still faces endemic levels of
violence, particularly against young people. Indeed, in 2009, Brazil ranked 26th
among the world’s most violent countries (based on a tally of 207 countries), with
a rate of 22.7 homicides per 100,000 inhabitants (whilst the United States reported
5.8 per 100,000; and the United Kingdom, 1.2) (UNODC 2011).
16 Fernanda Fonseca Rosenblatt
While there was a steady decline in homicide rates in São Paulo throughout the
first decade of the 2000s, at a national level, from 1980 to 2010, the number of
homicides per 100,000 inhabitants grew 124 percent (Waiselfisz 2011). During the
same period, the homicide rate among young people alone (aged 15 to 24) grew
204 percent – from 17.2 homicides per 100,000 young people in 1980 to 52.4 in
2010 (Waiselfisz 2011). In fact, young people (aged 15 to 24) are far more likely
to become victims of homicide in Brazil than are “non-young people” (that is,
people aged under 15 or above 24) – and most of them are male, black and poor
(Waiselfisz 2011). These numbers rank Brazil as the fourth worst among 91 coun-
tries in terms of youth homicides, behind El Salvador, Venezuela and Trinidad and
Tobago (Waiselfisz 2011).
In this context, as one of the most vulnerable social groups in Brazil, children
who live and/or work on the streets are most severely affected by such levels (and
shapes) of poverty and violence. In fact, the aforementioned rates, coupled with the
findings of a recently published national survey on street children (which will be
discussed more thoroughly below), provide up-to-date empirical data to substan-
tiate the argument that the so-called “street children phenomenon” remains a seri-
ous problem in Brazil. Indeed, despite some (early) enthusiastic attempts to over-
come the problem – such as the foundation of the National Movement of Street
Boys and Girls in the 1980s, and the creation of many laws to protect children in
Brazil (particularly) in the 1990s – in recent years the true thread of reform appears
to have been lost (Rizzini et al. 2010). In this vein, the lack of sustained debate
and action on street children has meant that, more than three decades after their
“discovery” in Brazil, the phenomenon still raises various (and, one could argue,
ever more serious) concerns, ranging from these children’s low rates of school
attendance to their addiction to drugs to their relatively more recent involvement
in the drug trade and with drug factions to their problematic and, at times, deadly
relationship with the police, and so forth (Dimenstein 1991; Dowdney 2003;
Rosenblatt 2012).
Having said that, this chapter will focus on street children’s vulnerability to
neglect and violence, with specific reference to their victimization by the state and
its agents. Initially, an overview of the phenomenon in Brazil is provided, which
will shed light on a series of questions including: Who are the street children?
Where do they come from? What takes them to the streets? Thereafter, it will turn
to the actual street situation, that is, to the question of “What do street children
experience on the streets?” Particular attention will be paid to their experiences
of stigmatization whereby they become particularly vulnerable to violence and
also contact with the police (and the youth justice system more generally). Finally,
the state’s actions and inactions against street children will be brought to the fore.
Whilst elsewhere I reflect on the directions that interventions involving street chil-
dren might take (see Rosenblatt 2012), this chapter is mainly devoted in exposing
the Brazilian state’s neglect and violence against street children. Such a focus not
only fits within the general scope of this book, but also should help to keep alive a
debate that unfortunately does not belong to the past.
The victimization of street children in Brazil 17
The street children phenomenon in Brazil

It was from the late 1970s that the street children phenomenon came to be viewed
as a “social problem” in Brazil (Butler and Rizzini 2003). Over the years, particu-
larly until the late 1990s and early 2000s, numerous studies have been undertaken
to examine this population and the lives they lead (Dimenstein 1991; Frontana
1999; Lusk 1989; Rizzini 1995; Rizzini and Butler 2003; Vargas 2002). Today,
after a few years of relative silence, the topic has again come to the fore following,
among other events,1 the release of the first-ever national survey of street children
in the country (hereafter “national survey”) (SDH 2011).
The national survey was undertaken under the initiative of the Secretariat for
Human Rights of the Republic Presidency and the Institute for Sustainable Devel-
opment, with data collection taking place between May and June 2010. It had both
quantitative and qualitative dimensions, and was conducted in 75 Brazilian cities,
including all the capital cities and others with more than 300,000 inhabitants. A
total of 23,973 street children were counted, of which a majority of 22,124 were
included in the survey. In addition to that, the researchers drew a smaller sample
of 2,246 children from whom they gathered more extensive data.2 The following
overview is heavily based on the findings of this national survey, which, despite
the unavoidable limitations in a study of this scope and nature, “provides a much
more detailed demography of street children than any other existing study” (Bush
and Rizzini 2011: 31).
Who are the street children?

The term “street children” includes a very wide range of children: those who actu-
ally live on the streets on their own or with their families; those who work on the
streets during the day and return home in the evenings; those who have more, less
or no contact with their families; those who spend more or less time on the streets
and so on. In the national survey, nearly 60 percent of the children indicated that
they work on the streets during the day, but return to a home (either to their par-
ents, relatives, or friends) in the evenings, as opposed to 23.2 percent who indicated
that they regularly sleep on the streets (on paths, squares, bus stations, and so on).
Many others indicated that they do not sleep in the same place every day – they
sometimes sleep at home, at other times on the streets, and sometimes in other
places such as homeless shelters (SDH, 2011).
Altogether, these national and up-to-date figures seem to confirm what smaller
studies have already shown (e.g. Fausto and Cervini 1991; Lusk 1989; Ribeiro and
Ciampone 2001): “While a few of them spend all their lives on the streets, most of
them spend their days on the street hustling to earn small amounts of loose change
but spend their nights elsewhere, most of them with family or friends” (Bush and
Rizzini 2011: 7). Hence, I prefer a more inclusive definition of street children as:
“children for whom the street is a reference point and has a central role in their lives”
(Rede Rio Criança 2007: 18). Whilst being cognizant that such (homogenizing)
terms and definitions tend to overlook the fact that every child is a unique individual
(and should be dealt with through individualized approaches), for the purposes of
the present chapter, this is the adopted working definition of “street children.”
Where do they come from?

Several studies indicate that street children come from low-income communities,
predominantly from what Brazilians call favelas, where they suffer a number of dep-
rivations and human rights violations (Fonseca 2008; IBGE 1992; Lucchini 2003;
Vargas 2002). The favelas are spontaneously constructed residential zones that, until
recent years, were not formally recognized by the public authorities (Lusk and Mason
1994). They typically comprise a maze of overcrowded, insanitary houses squeezed
into “undesirable” public spaces – such as on steep hillsides, near dumpsites, under
bridges and viaducts, for example (Fonseca 2008; Rosenblatt 2012). There, most
“residents have historically been excluded from the formal labor market, quality
education, and participation in the public and political spheres” (Vargas 2006: 6).
In addition to this typical description of slums or shanty towns, an “explosion”
of illicit drug trafficking beginning in the 1980s – and with it, battles between drug-
dealing groups, disputes over drug debts, and violent police operations against drug
dealers – has come to characterize favela neighborhoods (Souza and Miller 2012).
So much so that the favelas are deemed to be the most violent neighborhoods in
Brazil (Bush and Rizzini 2011). In fact, whilst high rates of homicide have reached
crisis proportions in the country, they are said to be heavily concentrated in these
poor urban shantytowns, where “[t]he growth of drug markets has been coupled
with the easy availability of firearms for impoverished young men involved in the
local drug trade” (Souza and Miller 2012: 787).
In this context, the drug trade often employs young people as a cheap, disposable
labor force (Zaluar and Ribeiro 1995). A study conducted in Rio de Janeiro (Souza
e Silva and Urani 2002), for example, found that the involvement of children in
the drug-trafficking business has only increased since the 1990s, and that, although
most fall between the ages of 15 and 17 years, the age of children employed by
the drug trade is decreasing. Although from this one cannot draw any conclusions
about street children’s involvement with drug trafficking, as favela dwellers, in one
way or another, they are very much affected by the persistent drug trade and all its
violent consequences.
Altogether, along with their experiences of the streets, one must bear in mind
that street children carry with them this experience in favelas – the place where
they came from, or in most of the cases, to which they still belong; their perceived
“home” and “community.”
What takes them to the street?

Children get street-involved due to a range of intertwined (social, economic,
political, structural, personal, and situational) reasons. However, there are a few
aspects of street children’s life trajectories that must be considered when exploring
the occurrence (and persistence) of children working and/or living on the street.
Below, I highlight what I see (from a fairly undivided body of literature) as the most
prominent factors pushing children onto the street.
Poverty and violence

Ever since the first studies on street children were carried out, their need to help sup-
plement the income of their families (or indeed ensure their own survival) has repeat-
edly been pointed out as one of the main factors that bring these children onto the
streets (Benítez 2007; Human Rights Watch 1994; Moura 1991; Vargas 2002; Vogel
and Mello 1991). In 1989, for example, 86 percent of street children who participated
in a study carried out in Rio de Janeiro reported that they were on the streets to help
with the family’s budget (Rizzini 1995). Research carried out in Amazonas in the
early 1990s found that only 16 percent of the street children’s parents were employed
and that children were pushed to the streets in order to earn money (Rizzini 1995).
And despite Brazil’s (internationally celebrated) recent economic growth, pov-
erty is still a key word in explaining the street children phenomenon. Indeed,
nearly all children who engaged with the national survey – who reported working
or begging on the streets – indicated that they were doing so in order to guarantee
their own survival (52.7 percent) or to support their family’s budget (43.9 percent)
(SDH 2011). Moreover, nearly 80 percent of those who work and sleep on the
streets indicated that their parent’s unemployment was one of the main reasons
(they were allowed to give multiple reasons) for why they stopped returning home
in the evenings (SDH 2011).
Alongside poverty, “the violence experienced at home” also plays an impor-
tant role in a child’s “decision” to get street-involved. When the children who
work and sleep on the streets were asked why they stopped returning home in
the evenings, over 70 percent of those responding to the national survey indicated
“domestic violence” as one of the main reasons – either referring to verbal quarrels
with their parents or siblings (32.2 percent), to physical violence (30.6 percent), or
to sexual abuse (8.8 percent) (SDH 2011). Also in the national survey, 37 percent
of children who work and sleep on the streets indicated having “bad” or “very bad”
relationships with their parents – in a sample where 36 percent reported not having
any relationship with their parents (SDH 2011).
All in all, street children’s trajectory to the street often begins in a poor and vio-
lent environment – and as it becomes clear, this not only refers to favelas, but also
to individual households. It is mainly to escape these difficult life circumstances that
they become street-involved.
Fun and freedom

Poverty and violence alone, however, are not sufficient to explain the causes of street
involvement, as there are many other pull factors that draw children away from their
spaces in the favelas and onto the streets. Among them is the search for freedom,
leisure activities or different forms of recreation that they are unlikely to find at home.
Indeed, the chance to hang around with friends, having fun, going to parties, con-
suming legal and illegal drugs, all in an unsupervised environment, has often been
revealed as an attractive prospect leading to street involvement (Butler and Rizzini
2003; Hecht 1998; Lucchini 2003; Noto et al. 2003). Accordingly, when asked why
they were working or begging on the streets, 14.7 percent of the children who
engaged with the national survey indicated “to be able to use illegal drugs”; 7.2 per-
cent mentioned “to be free”; 6.8 percent indicated boredom at home; and 6.3 per-
cent considered going to the streets as more fun than staying at home (SDH 2011).
High expectations and constrained choices

Overall, the question “What takes children to the streets?” is intrinsically connected
to another: “What do children expect from the streets?” The answer is again pro-
vided by fairly undivided literature (Benítez 2011; Lucchini 2003; Lusk and Mason
1994). They go to the streets in search of what is missing at home, namely, money,
food, protection, support, affection, or, as stated by a street boy himself, in search of
a “more peaceful and happy life” (Scheper-Hughes and Hoffman 1998: 368). These
high expectations create a “fascination” for the streets (Vogel and Mello 1991) and
this is what, at the same time, attracts these children to the streets and prevents them
from considering the high price they will inevitably pay for living there.
Of course this is an over-simplified way of presenting an extremely complex
process of street involvement. It is important to note that children do not con-
sciously make a “decision” to move out to the streets on a certain day for specific
and easily articulated reasons. On the contrary, they very often get caught in a com-
ing-and-going pattern with the streets, returning home, fleeing again, and so on
(Ribeiro and Ciampone 2001). And as they progress around this “circle of experi-
ence” on the streets, their “choices” become increasingly constrained, as Wernham
(2004: 46) explains:
for example, a boy may “choose” to leave home in order to earn money and
escape from the responsibilities of having to look after younger siblings at
home; however, once on the streets his choices may become more limited
if (for example) he is forced or coerced into participating in criminal activity
for a group of older boys; furthermore, when he is arrested (i.e. at the stage of
contact with the criminal justice system), he may find his choices have turned
into “non-choices” as control of the situation is taken out of his hands by
external factors (such as the police).
The “street situation” and the stigmatization of street

children in Brazil
While children typically end up street-involved for the fulfillment of needs that are
unmet in the home, when on the streets they still face a life of poverty, hunger, a
lack of shelter, criminal victimization, sexual harassment, trouble with the police,
solicitation into crime, and so forth. Further, by virtue of their life circumstances,
street children are often the target of prejudice and discrimination. In fact, such
children are victims of a harsh process of stigmatization that often results in their
being presumed to be offenders, even when there is no offence; drug addicts, even
if they have never used drugs; and “vagrants,” even if they work hard. For now,
the focus will be on the general contours of their “street situation,” with particular
attention being paid to this stigmatization process whereby they become particu-
larly vulnerable to violence and to contact with the police (and the youth justice
system more generally).
Making a living on the streets

Once street-involved, children often engage in behaviors and survival strategies
that further compound their vulnerability to stigmatization and criminalization.
Indeed, to start with, they do what they can to earn money. In the national survey
(SDH 2011), the majority of the children were involved with low-paid jobs, such
as selling candy, ice cream, or other cheap goods (39.4 percent); guarding or wash-
ing cars, or cleaning car windscreens (19.7 percent); separating recyclables in the
garbage (16.6 percent); and shining shoes (4.1 percent). Nearly one third (29.5 per-
cent) said they make a living on the streets by begging, while the minority reported
being involved in criminal activities such as stealing or robbing (8.1 percent), and
drug-trafficking schemes (3.6 percent).
It has always been difficult to collect data on street children’s actual involvement
in crime. On the one hand, most empirical studies are based on interviews with the
street children themselves, who are unlikely to “open up” about their “criminal
experiences.” This is particularly the case in relation to their involvement in the
drug trade, for example, as disclosing information about drug-trafficking schemes
will, almost inevitably, put their lives (and the lives of their family members) at risk.
On the other hand, the statistics presented by the Brazilian youth justice system,
which could be an alternative to unreliable interviews, fail to show how many reg-
istered young offenders are (or were) street children (Fonseca 2008).
Having said that, in an adult detention center in Brasília, research revealed that at
least 80 percent of the inmates were former street children (Dimenstein 1991). And
much of the literature has attempted to explain the limited choices available to chil-
dren living and working on the streets who, despite their best efforts not to engage in
criminal behavior, might be coerced into adult or street gang criminality, or simply
confronted with dilemmas such as “Do I steal or go hungry?” (Wernham 2004). This
is not to say, however, that street children are more likely to commit crimes than
children who do not work or live on the streets. Rather, it is to suggest that, given
the circumstances in which street children live, and the discrimination they endure,
such children are highly likely to get into trouble with the police (and to come into
contact with the youth justice system), regardless of whether or not they have actu-
ally engaged in criminal behavior (Peacock and Rosenblatt 2013; Rosenblatt 2012).
In addition to their actual or perceived involvement in crime, the fact that street
children can often be seen begging, or wandering the streets, also furthers their
experiences of stigmatization and criminalization. Indeed, odd as it may seem for
a country where millions of people live below the poverty line, there is still legal
provision in Brazil that criminalizes the act of “wandering about without lawful or
identifiable means of subsistence,” as “vagrancy” is roughly defined in Article 59
of the Brazilian Act on Criminal Contraventions. Moreover, until 2009, the act of
“begging” was also considered a criminal offence. Intriguingly, whilst the anti-beg-
ging law was abolished on grounds of being a discriminatory provision against the
poor, the vagrancy proscription remained in force. Whether based on current legal
provisions or upon repealed law, “vagrancy” and “begging” are still behaviors that
street children may engage in (or may be perceived to be engaged in) which may
further compound their vulnerability to stigmatization and criminalization.
Altogether, the factors that tend to drive children onto the streets (including
poverty) are often the very same factors that put them at risk of contact with the
youth justice system. And, in this context, “[h]uge numbers of children are being
arrested and locked up simply for being poor and in the wrong place at the wrong
time” (Wernham 2004: 52).
The problem of substance abuse

Ever since researchers begun to systematically study the street children phenom-
enon in Brazil, accounts of substance abuse amongst this population have been
persistent in the literature (Inciardi and Surrat 1998). Back in the 1980s, the types
of substances used by Brazilian street children seemed to be limited mainly to shoe
glue and marijuana, which were cheap and easily available (Lusk 1989; Trindade
2002; Wernham 2004). Over time, however, the easy and inexpensive ways of
producing “new” harder drugs have meant that these are now accessible to drug
users across all socio-economic groups. In this context, street children are increas-
ingly exposed to harder drugs, such as “crack cocaine,” a deadly and highly addic-
tive chemical derivative of cocaine (Noto et al. 2003).
Street children abuse substances for a number of reasons. In a national survey
on drug use among street children in Brazil, carried out in 2003, the three main
reasons reported were “because it is nice, pleasant and fun” (19.8 percent), “to
forget sadness” (8.9 percent), and “because my friends use them” (8.8 percent).
However, many other reasons were found, such as: “to become less shy”; “to feel
stronger, more powerful and brave”; and “to forget hunger and cold” (Noto et al.
2003: 33).
It is important to highlight that drug use is one of the most stigmatizing aspects
of street children’s experiences on the streets. Such populist perceptions that all
street children are drug addicts have restricted their access to basic services (as will
be detailed in the following section), “while rendering them more susceptible to
verbal abuse and humiliation at the hands of the public and police” (Wernham
2004: 55).
State neglect and violence against street children in Brazil

The stigmatization of street children in Brazil leads to various more or less institu-
tionalized forms of neglect and violence against them. For example, perhaps at the
lower end of the scale, street children’s fundamental rights as Brazilian citizens are
routinely violated. Indeed, the national survey (SDH 2011) found, in a smaller sam-
ple of 2,246 respondents, that 36.6 percent of the children had been prevented from
entering shops or shopping centers; 31.1 percent from using public transport; 27.4
percent from entering banks; and 20.1 percent from entering a public agency (e.g.
post offices). Moreover, 12.9 percent of the respondents said they had been denied
treatment from public health services; and 6.5 percent have not been issued personal
documents (such as identity cards, which are mandatory for Brazilian citizens). Gener-
ally speaking, over half of the respondents have experienced at least one of these forms
of exclusion. At the other end of the scale, though, children on the streets are often
beaten, tortured, sexually assaulted, and sometimes killed. Indeed, the vicious circle
of stigmatization not only strips street children of their basic civilian rights, such as
their right to use public transport, but also makes them particularly vulnerable to seri-
ous violence. What is more, this violence is often perpetrated by state agents or with
their knowledge and consent. In other words, as will become clear below, those who
should be protecting these children from the abuse of others are very often the abusers
themselves, in an astonishing double violation of human rights (Wernham 2004).
From state omission to the penalization of poverty in Brazil

Brazil is a Signatory State to the United Nations Convention on the Rights of the
Child (UNCRC 1989), which sets forth a child’s right “to survival; to develop to
the fullest; to protection from harmful influences, abuse and exploitation; and to
participate fully in family, cultural and social life.” The country has also ratified the
International Labor Organization Convention Number 182 (ILO 2000), according
to which member states “shall take immediate and effective measure to secure pro-
hibition and elimination of the worst forms of child labor as a matter of urgency”
(Article 1). This includes, for example, the prohibition and elimination of “the use,
procuring or offering of a child for illicit activities, in particular for the production
and trafficking of drugs as defined in the relevant international treaties” (Article 3).
In fact, Brazil produced a constitution in 1988 including the same principles that
only one year later would be adopted by the UNCRC (Scheper-Hughes 2006).
Moreover, in 1990, the country passed specific legislation in support of children’s
rights – the Brazilian Statute of the Child and Adolescent (ECA, its acronym in
Portuguese) – which is to date one of the most progressive and admired documents
of its kind (Rizzini 1995). Altogether, “Brazil [has] served as a model of radical
consciousness with respect to recognizing the special needs and rights of unpro-
tected children” (Scheper-Hughes 2006: 151).
Nevertheless, the Brazilian state is failing to protect its children on a large
scale, and the “street situation” of thousands of children remains one of the most
obvious cases. In this vein, the scope and nature of street children’s work on
the streets means that, at the least, the state is failing to provide for their right to
“develop to the fullest.” Likewise, their living conditions, both on the streets and
in the favelas, indicate how deprived they are of the right to “participate fully in
family, cultural and social life.” Also, their involvement in the drug trade clearly
reveals the state’s failure to eliminate the worst forms of child labor in the country.
In fact, relying on a human rights definition of state crime (see Cohen 1993; Faust
and Carlson 2011), one could argue that Brazil’s inaction from domestic to public
abuse, in welfare and in education, and all throughout street children’s life trajec-
tories, reveals a series of state crimes of omission.
On the other hand, as Scheper-Hughes (2006: 154) argues, “the introduction
of human and civil rights embodied in the 1988 Constitution, promising civil lib-
erty to the homeless, street children, vagrants, the unemployed, and prisoners, was
counterintuitive to a great many people in Brazil.” Indeed, two decades of military
dictatorship in the country (1964–85) “continue to weigh heavily on the func-
tioning of public force, as well as on collective mentalities, with the result that a
broad spectrum of social classes tends to identify the defence of human rights with
tolerance of [criminality]” (Wacquant 2003: 200). In this context, when departing
from its absence and omissions, the Brazilian state has often adopted the (populist)
US-style discourse of “zero tolerance,” which in practice probably amounts to
what Wacquant (2003) has termed “a dictatorship over the poor.” This becomes
very clear when one looks at how, besides the visits of politicians in election times,
the state’s selective presence in the favelas has been through repressive police oper-
ations, particularly with the surge in drug trafficking (Leeds 1996). Indeed, the
“state’s manner of responding to drug-dealing in favelas represents a latter-day
example (following a series of historical parallels) of repressing lower-class ‘aber-
rant behavior’ and thereby repressing significant segments of an entire class” (Leeds
1996: 49), especially if one considers that “favelas are mere points of sale, nodes
in a transnational web, and the great majority of drug consumers are the affluent
classes” (Vargas 2006: 62).
This is particularly relevant to street children. Indeed, street children are not
only indirectly affected by such zero-tolerance policies, but are often the very tar-
gets. The city of Rio de Janeiro, for example, has recently launched an initiative
named “the Shock of Order” (o Choque de Ordem), which involves “cracking down
on the ubiquitous illegal street vendors and to a lesser degree on carefully selected
‘illegal’ housing,” as well as “picking up street kids from middle class neighbor-
hoods and taking them elsewhere” (Bush and Rizzini 2011: 26). And such “street
clean-up operations,” in which the police simply take street children off the streets
and either hold them somewhere (e.g. police stations) or send them home, are not
new practices in Brazil. When Rio de Janeiro hosted the Pan American Games in
2007, “the Rio garbage company, COMLURB, and the police literally hustled
street kids into the back of garbage trucks and took them to shelters and the periph-
ery of the city” (Bush and Rizzini 2011: 26).3 Wernham (2004: 83) suggests some
reasons behind the timing of such operations:
“Cleaning” the streets prior to the arrival of visiting dignitaries to the city,
international conferences or similar events; To coincide with the tourist sea-
son or the promotion of campaigns to encourage tourism; Preceding, or
immediately following, local or general elections so that politicians are “seen
to be doing something” about the street children “problem” [. . .].
Of course, due to the lack of “a comprehensive and holistic range of child-friendly

services to genuinely expand the life choices available to street children,” such
children end up returning to the streets at the first possible opportunity (Wernham
2004: 84).
State violence through police-led death squad operations

The “street clean-up operations,” as described above, represent one of the Brazilian
authorities’ “legal” – or, at least, “official” – although ineffective, attempts to take
children off the streets. The picture only gets worse if one looks at the involvement
of the Brazilian police in the so-called “death squads” (or “extermination groups”).
Indeed, typically made up of off-duty police officers who have been hired by local
businessmen, these armed groups aim to “clean-up” the streets, but in this case the
“operation” means killing street children with the excuse of “guaranteeing public
safety” (Berndt 2009; Dimenstein 1991; Human Rights Watch 1994; Scheper-
Hughes 2006). Hitherto, several attempts have been made to demonstrate how the
stigmatization of street children results in a range of human rights violations. Death
squads, as argued by Wernham (2004: 75), are at the extreme end of this spectrum.
An ex-member of the Rio death squad shows how it works:
What happens is that you are employed by a group of shopkeepers. You earn
more than a policeman. A boy comes along and robs the shop, so you give
him a thump. Another one comes along and steals something else. If you
don’t do anything and let them go on stealing, you lose your job. It’s no use
playing about with some of these kids, you’ve got to kill them.
(Dimenstein 1991: 44)
One of the most horrific death squad operations against street children in Brazil-
ian history was the worldwide known “Candelária Massacre” of 1993 in Rio de
Janeiro. Five men (three of whom were later identified as police officers) opened
fire on a group of 50 sleeping children in front of the Candelária Church, leaving
eight children dead and many injured (Human Rights Watch 1994; Rochester
2008; Rosenblatt 2012). This incident provoked a wave of indignation and shock
– not just because of the number of victims, but also because of the involvement
of police officers and the murders taking place on a church forecourt in one of the
world’s most Catholic countries (Rochester 2008). In turn, the policemen involved
were quickly arrested (and, three years later, convicted),4 the commander of the
battalion in which the policemen served was dismissed, and since then the incident
is mentioned in virtually every piece of writing on the street children phenomenon

in Brazil.
The Candelária killings, however, was far from an unusual occurrence. Indeed,
at the time, it publicized a persistent pattern of violence against children in the
country:
The Candelária killings [. . .] reflect the larger pattern of perpetrators and

motives. In many cases, homicides of children are committed by on-duty
police or by private death squads which are frequently composed of off-duty
policemen. The killings occur because poor children are perceived as men-
aces and criminals, who must be eliminated, or because criminal deals made
between children and police or organized gangs go awry.
(Human Rights Watch 1994: ix)
In this context, there is data to support that “the 1990s police and vigilante attacks
on street children and marginal youths in São Paulo, Rio de Janeiro, Salvador, and
Recife produced youth mortality statistics that rivaled South Africa’s during the
armed struggle against apartheid” (Scheper-Hughes 2006: 154). Also, empirical
studies have been consistent in showing that street children consider police officers
as “their worst enemies” (Ribeiro and Ciampone 2001: 46) and what they “most
fear” on the streets (Dimenstein 1991: 3).
In more recent years, however, the topic of police-led death squads and their
attacks against street children seems to have faded from academic publications and
political debates in Brazil – somewhat as if such practices were not current but,
rather, “big stories” from the past (like the Candelária case). In fact, as Berndt
(2009: 12) argues, “while reports about extermination continue to circulate,
there is little proof at hand that backs up the anecdotal evidence.” In turn, more
recent studies tend to provide en passant “hints” of violence perpetrated by the
police, without much elaboration on the persistence of death squad operations
in the country. For example, according to Bush and Rizzini (2011: 26), “street
educators report that the young people suffer high degrees of harassment and
abuse [during the current “Shock of Order” operations].” However, no further
data or information is provided (e.g. was there a systematic study on the impact
of the “Shock of Order” on street children? Are there known cases of street chil-
dren being killed under “Shock of Order” operations?). Likewise, in the national
survey (SDH 2011), the majority of those who sleep at home said they preferred
not to sleep on the streets because of “violence” (56.1 percent) or “police opera-
tions” (35.7 percent) (SDH 2011). But this is the closest the national survey gets
in revealing new data on police violence. Moreover, the 2012 Amnesty Interna-
tional report suggests that police-led death squads are still in operation in Brazil,
and engaged in “social cleansing” – without referring to cases involving street
children, however.
That having been said, it is important to read the aforementioned “hints” in
light of some more general (but equally up-to-date) data. For example, one should
bear in mind that the homicide rate among young people grew 204 percent over
the three decades since the 1980s in Brazil; that young, black and poor men are
far more likely to be victims of homicide than any other group; that two of every
three firearm homicides occurs to young people; that there is a recent national sur-
vey indicating the persistence, and socio-demographic profile, of street children in
Brazil; to mention but a few general data discussed throughout this chapter. That
is, although further research is needed to better understand the current state of
affairs, it seems unreasonable to maintain that street children in Brazil are not the
victims of police attacks anymore, in face of what is currently known: that police
operations are still among street children’s biggest fears, that death squads are still
in operation in Brazil, that street children have the same socio-demographic pro-
file of those who are more likely to become victims of homicide in Brazil, and
so forth.
The truth remains that it is difficult to monitor the extent of serious human
rights violations against street children, as “[m]any cases are not reported because
of the lack of witnesses or because victims or their relatives live on the fringes
of society and tend to remain anonymous, without resources or knowledge to
file complaints or to receive legal assistance” (Wilson and Greider-Durango 1998:
183). Rochester (2008: 4) suggests an interesting definition of “death squads” as
extermination groups that seek “to ‘control’ the nuisance of street kids by killing
them and dumping their bodies in ones and twos on the edge of the city, where only
the poor would notice” (emphasis added). If anything, we may well be back to the days
when street children were killed and their bodies dumped where “only the poor
would notice.” That is, if anything, we are back to (or have never left?) a pattern of
impunity that was very much fought against during the 1990s. It is important that
the silence is broken; and the fight against the extrajudicial killing of street children
is resumed.
Further violence in youth detention centers

In accordance with the UNCRC, Article 122 of the ECA provides that the deten-
tion of under-18-year-olds – or the “internment measure,” as it is legally termed
– should be used as a measure of last resort and for the shortest period possible. It
also provides that the internment measure should be served in “educational facili-
ties” (as termed in Article 112), where, including during the pretrial internment,
pedagogical activities should be carried out (Article 123). Further, Article 124 pro-
vides a non-exhaustive list of rights, according to which all children deprived of
liberty in Brazil should “be treated with respect and dignity,” “live in adequate
conditions of hygiene and health,” “carry out cultural, sports and leisure activities,”
and so forth.
In practice, however, “detention is most often used as a first and only resort”
and “often for the longest rather than the shortest possible time” (Wernham 2004:
91; see also Human Rights Watch 2003). Moreover, children are typically held in
precarious confinement conditions, in youth detention centers that look nothing
like the “educational facilities” foreseen in law. Throughout this chapter it has
been suggested that street children are highly likely to come into contact with the
youth justice system in Brazil – but then what? Then, as it happens with other
young people in (actual or perceived) conflict with the law, street children are often
“locked-up” in prison-like facilities, where again they become victims of a number
of human rights violations.
Beatings at the hands of the police during and after arrest are commonplace,
particularly at police stations, where children are often held while they await
transfer to a youth detention center (Human Rights Watch 2003). Once placed
in youth detention centers, (street) children are often confined to overcrowded
cells for lengthy periods of time, with little opportunity to be outdoors, and even
fewer opportunities for exercise, recreation, and other activities (CNJ 2012). In
this context, education is not available to all, and idleness is a serious problem as
children may spend “significant portions of their day locked in their cells with
nothing to do” (Human Rights Watch 2003: 3). The conditions of hygiene and
health are also very poor – children often live with limited access to a shower, and
often in leaking cells that have no natural air and light (CNJ 2012). Accordingly,
in research carried out in Brasília, on some days the researcher saw “as many as
25 adolescents piled into a cell constructed for two people” (Dimenstein 1991).
More recently, between July 2010 and October 2011, the occupation rate of
youth detention facilities reached 221 percent in some parts of the country (CNJ
2012). In 2002, research revealed that not every child is provided with bedding
and mattresses (or hammocks); indeed, some children reported “that they had
slept on the floor at some point during their detention” (Human Rights Watch
2003: 31).
Children also often become victims of sexual abuse and violence perpetrated by
other inmates, staff members, or by the police (CNJ 2012). In fact, the widespread
use of torture and other ill-treatment by staff members and the police has been
widely and repeatedly documented and denounced by national and international
human rights organizations (see Amnesty International 2012). In 2003, 13 human
rights organizations presented a report to the United Nations, according to which
sticks, pipes, and iron chains were used to torture inmates in youth detention cent-
ers.5 The report also suggests torture that leaves no scars, such as choking the chil-
dren in the toilet or with buckets full of water. In this context, riots and rebellion
are commonplace. Indeed, with severe overcrowding, degrading conditions, tor-
ture – all leads to attempts at mass escape and rebellion. One of the biggest cases
of rebellion occurred in a unit in São Paulo in 1999 – it lasted for 8 hours, many
juveniles and staff members were injured and four juveniles died, one of whom was
decapitated by an inmate (Nascimento 1999). Cleary, whilst remanded in custody,
(street) children are not provided with adequate educational and rehabilitative pro-
grams. Unsurprisingly, “[i]n no time at all, the children are back on the street, far
worse than when they were taken off it” (Dimenstein 1991: 40). Once back on the
streets, they are again vulnerable to contact with the youth justice system, and the
“revolving door cycle” goes on:
[It] is likened to “a revolving door”: however far the children enter into the
system, without [adequate] intervention, they are likely to end up back on
the streets again where they started from – most likely even worse off than
before, with additional mental, physical and sexual scarring to add to the exist-
ing catalogue of difficult experiences with which they must already cope.
(Wernham 2004: 63)
Conclusions
One very visible symptom of Brazil’s social divide – even in times of unprec-
edented economic growth – is the presence of children working and/or living on
the streets. In fact, as Berndt (2009: 9) argues:
When we talk about Brazil today we seem to be talking about two dif-
ferent countries. One country has a much praised economic structure and
is frequently quoted in the media as a successful developed society with a
strong presence in international forums and conventions. The other country
is quoted on international human rights forums as being desperately poor,
and ruled by violence and crime.
(Berndt 2009: 9)
The aim of this chapter has been to provide up-to-date insights into the street
children phenomenon in Brazil, and therefore into “the Brazil” that is still “poor,
and ruled by violence and crime.” More precisely, by indicating how the stigmati-
zation of street children results in a range of human rights violations, my aim is to
promote (or, actually, retrieve) discussions over one of these “Brazils” where street
children are (still) subject to routine violence by authorities, ranging from everyday
brutality to “death squad” operations and institutionalized torture in youth deten-
tion centers.
Altogether, this chapter has, it is hoped, helped to bring back to the fore a topic
that was very popular in the 1990s: from their life in the favelas all the way through
to their experiences in youth detention centers, street children in Brazil are victims
of multiple human rights violations, with the state being the main perpetrator – and
these children’s plight should not be eclipsed by the country’s recent socio-eco-
nomic progress.
Notes
1 Other examples include the attempts (since 2009) in several Brazilian cities to develop,
for the first time, public policies especially tailored for street children (see Bush and
Rizzini 2011).
2 Throughout this chapter, wherever the data refer to the smaller sample, this will be
clearly stated.
3 And Brazil has won bids to host the 2014 Football World Cup and the 2016 Olympic
games . . . !
4 In fact, only two of them were convicted (see details in Rochester 2008).
5 The original report is still available online, at http://www.ovp-sp.org/relatorio_sp_

exec_sumarias.pdf (accessed April 2, 2013).
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3
ACCUMULATING ATROCITIES
Capital, state killing and the
cultural life of the dead
Tyler Wall and Travis Linnemann
Introduction
December 19, 2011, the day after the “official” completion of US troop with-
drawal from Iraq, the international press published numerous articles naming David
Emanuel Hickman as the last US soldier killed in the war. A press release from
the US Department of Defense (DOD) reported Hickman, 23, from Greensboro,
North Carolina, “died of injuries suffered after encountering an improvised explo-
sive device,” a sanitized and despicable way of saying the young man had been
ripped to pieces by a bomb—improvised or otherwise. Along with Hickman, the
Associated Press (AP) named Jonathan Lee Gifford, as the first US soldier killed in
action in the war, on March 23, 2003. Piecing together a macabre sort of timeline,
publications of this sort intend to mark time, the “passing” of war and thus geopo-
litical triumph, with the faces and names of the dead.
Yet, bracketing the list of the 4,485 US soldiers that died in Operation Iraqi
Freedom and Operation New Dawn are the names of two other men, Jose Guti-
errez, at its beginning, and Ahmed Kousay al-Taie, at its end. According to the
Iraq Casualties Database, Marine Lance Corporal Gutierrez, 28, “was an orphan
who grew up on the streets of war-torn Guatemala” and, after immigrating to the
United States, was raised in the California foster care system, graduated from a pub-
lic high school in Torrance and then “partly to repay the United States” enlisted
in the Army. Killed by “friendly fire” March 21, 2003, Jose earned US citizenship
posthumously. The last name, Army Staff Sergeant Ahmed Kousay al-Taie, of Ann
Arbor, Michigan, was added February 25, 2012, when officials announced that
remains discovered earlier that month in Iraq were his. An Iraqi-born interpreter,
al-Taie had been missing and presumed dead since late 2006.
Regardless if Gifford was the “first” or Hickman was the “last,” the names of
these four dead men pose difficult questions about the US occupation of Iraq and
34 Tyler Wall and Travis Linnemann
what it means to die in war. First, in this age of capitalist globalization, an oriental-
ist “War on Terror” and xenophobic debates over “immigration,” it is profoundly
ironic or, more aptly, heartbreaking, that the men whose names begin and end the
list of dead US soldiers were born not in the “American heartland” but in Guatemala
and Iraq. Yet, more specific to our purposes here, the list of war dead, complete
with public obituaries, photos, biographies and other details, stands in stark contrast
to an incomplete or altogether absent accounting of those foreign others on the
losing end of US imperialism. Indeed, beyond the heroic epitaphs the US military
and mainstream media have written for its own, there is no detailed “list” or public
accounting of the countless others lost in this “war of aggression”—one clearly in
violation of international law (Kramer and Michalowski, 2005). Yet this is not sim-
ply the monumental task of recording the hundreds of thousands of lives disappeared
by years of US empire, but rather a deliberate military and political strategy to ensure
the killed and maimed foreign others are unnamed, silenced and forgotten. Indeed,
as US General Tommy Franks famously quipped regarding the number of killed in
Afghanistan, “You know we don’t do body counts.” And thus the cliché that “the
truth is the first casualty of war” is particularly true, when simply recognizing the
lives lost in US wars is expressly something its military and public don’t “do.”
With the tenth anniversary of the US invasion of Iraq in mind, in this chapter
we return to representations of a particular 2004 “incident” of US death-deal-
ing, where 40–45 lives were extinguished by US military action. Focusing on the
“Mukaradeeb Massacre,” we attempt to unpack the cultural and political dynamics
of denial and indifference that animate US neoliberal military power. Excavat-
ing the symbolic and systematic violence that disowns US death-dealing in the
military’s “official” accounts and apologetic media representations, we show how
the Mukaradeeb killings, like so many other “incidents,” have been appropriated
within late capitalist culture where mainstream media and the state officials disown
mass victimization. As Stanley Cohen (2001) described, this “culture of denial”
rules out any sustained and honest conversation about the production of mass death
in the US invasion and occupation of Iraq specifically, and US imperialist projects
more generally. This confrontation forces us to consider how atrocities like Muka-
radeeb are haunting evidence of the legacies of US neocolonialist projects and
reveals the ways political violence, cultural production and capitalist accumulation
are entwined and inform everyday life. In this sense, this chapter is an exercise in
remembrance of the victims of US military actions in Iraq. If stories of the disap-
peared war dead are, in a sense, ghost stories, as Gordon (2008) suggests, then this
chapter can be understood as a conversation with the specters, or the cultural lives,
of the thousands of civilian dead of the US imperialist project, or the globalization
of capitalist accumulation.
The politics of atrocity and the cultural life of the dead

Now more than a decade long, the second US invasion and occupation of Iraq has
wrought unspoken and untold carnage and mass death. Even the most conservative
Accumulating atrocities 35
estimates place the civilian death toll at over 120,000, though this figure, derived
from US and world newspapers, is undoubtedly higher. Yet, regardless of the spe-
cific quantification of the atrocities, the mainstream US media rarely discuss these
deaths, as even acknowledgement of the victims of US military violence remains
highly political and suspect in US culture and political discourse. Indeed, the plight
of civilians in US military campaigns—from the “founding” colonization to the
current wars in Iraq and Afghanistan and targeted drone attacks in Pakistan, Yemen
and Somalia—has been met by the silent indifference of the state, mass media
and citizenry (see Tirman, 2011). Quite paradoxically, as military and communi-
cation technologies have become more efficient, killing has become increasingly
absent from popular culture and political representations. Many commentators
have linked “postmodern war” (see Gray, 2003)—fusing techno-scientific weap-
onry such as “smart bombs” and “precision-guided missiles” to 24/7 techno-media
communications—with the ability of the “military-industrial-media-entertainment
network” (Der Derian, 2009) to make state killing appear “clean” and “blood-
less.” In the contemporary social imaginary, as Gusterson (2004) has argued, the
US discourse on war “is at odds with the very essence of war” as it disowns the
reality of “victories” won “by damaging and destroying the bodies of the enemy”
(Gusterson, 2004: 65).
It is a long-standing practice of the mainstream US media to not publish images
of the horror—dead enemies and civilians—of US wars. This practice is some-
times justified as an effort to prevent “anti-American” sentiment among foreign
enemies, or simply a matter of “good taste.” This was particularly clear during the
barely month-long Persian Gulf War or “Desert Storm.” Even though “embed-
ded” reporters traveled with military units in Iraq, the US public did not witness
the mass carnage of thousands upon thousands of dead Iraqi civilians. As Gusterson
(2004) noted, “surely the most extraordinary feature of that war was the virtual
absence of dead and wounded Iraqi bodies in public representations of a war in
which an estimated two hundred thousand Iraqis died in close proximity to roughly
one thousand journalists in search of a story” (Gusterson, 2004: 73). This point is
supported by General “Stormin’” Norman Schwarzkopf’s famous musing, “if I
have anything to say about it, we’re never going to get into the body-count busi-
ness” (Aronson, 2013: 35).
But, as taboo as the maiming and killing of innocent civilians is to US audi-
ences, wartime atrocities still have power to mark the history of an entire conflict,
campaign and era. For instance, the mass murder of some 500 unarmed civilians at
the South Vietnamese village of My Lai, exposed by journalist Seymour Hersh, is
forever entwined with the controversial history of US war in Southeast Asia. If the
Viet Nam War is inseparable from the “My Lai Massacre” (McGarry and Walklate,
2011), then the obscene images of torture at Abu Ghraib prison similarly scar the
second US invasion of Iraq (Hamm, 2007). Yet, in addition to Abu Ghraib, we
can name the “Haditha Massacre,” where 24 Iraqi civilians were gunned down by
US Marines. Likewise, we can recall the “Mahmudiyah Massacre,” where a few
US soldiers raped and killed 14-year-old Abeer Al-Janabi only after murdering her
entire family. These cases underline how atrocity is a recurrent frame—an exem-
plary scene—and how contemporary practices of US state violence disrupt the
routine and become contested in US public discourse, if only temporarily.
Therefore, even though the state goes to great lengths to deny the lives it vic-
timizes through organized violence, the dead are never completely disappeared
or erased. As Christophe Wasinski (2008) argues, the dead live on— “ventrilo-
quated”—by the words and representations of the living. In this way, the dead have
a cultural life, fashioned by criminal trials, vigils, news reports, films and everyday
conversations. Thus, as Avery Gordon (2008) argues, the ghosts of the dead are a
powerful frame for social inquiry:
The ghost is not simply a dead or a missing person, but a social figure, and
investigating it can lead to that dense site where history and subjectivity make
social life. The ghost or the apparition is one form by which something lost
or barely visible, or seemingly not there to our supposedly well-trained eyes,
makes itself known or apparent to us, in its own way, of course.
Reanimated in the cultural field, the ghosts of war dead like those at Mukara-
deeb, to which we turn to below, haunt the legacies of US imperial projects. It is
therefore important to unpack the ways in which ghosts of the dead make them-
selves known and mingle with the living and everyday life. But how we respond,
or how the voice of the ghost is ventriloquated, becomes vital and is an inherently
political and contested project. Indeed, to apprehend the far-reaching effects of
imperial projects, we must first be able to see and name violence for what it is. As
Cavarero (2011) writes, “If we observe the scene of massacre from the point of
view of the helpless victims rather than that of the warriors . . . the picture changes
. . . the rhetorical facade of ‘collateral damage’ melts away, and the carnage turns
substantial. More than war, what stands out is horror” (Cavarero, 2011: 2). Yet,
as John Tirman (2011) argues, when atrocities caused by US occupations do draw
critical attention, the outrage and melancholy are most often directed inwards—
“what has happened to America’s soul?”—and hence serve imperialist denial. This
sort of inverted anguish, what Slavoj Žižek (2008) describes as “fetishistic disa-
vowal,” is fundamental to US state violence as it allows the public to gloss over
the far-reaching consequences of US military actions and capitalist accumulation
in which it serves, by carrying on acting “as if it [the public] doesn’t know.” Thus,
the horror of war is difficult to recognize as anything but “legitimate and necessary”
because the violence is “produced and guaranteed by the state” (Bourdieu, 1994: 1).
For this reason, modern states and their claim to legitimate physical violence—
where an identifiable subject inflicts harm—is always contingent on the production
and regulation of systematic and symbolic violence, or objective violence (Žižek,
2008). Indeed, for US imperialism to proceed unabated, the civilian “causalities” of
military “battlefields” must be situated within what Cohen (2001) called a “spiral
of denial” where knowledge of atrocity is diffused by myriad discourses and mate-
rial interests that disown one’s complicity or direct involvement in state killing. In
The Body in Pain, Elaine Scarry (1985) argues these denials re-work the centrality
of killing in war, to the point where killing becomes a secondary or even invis-
ible part of US military projects. Yet, Scarry is not simply referring to censorship
practices, but to the language, discourse and visual culture that remove killing
from the political logics and cultural representations of state killing. The cultural
politics of war are also a politics of visual representation, where images come into
focus, while other images of war disappear from the visual field altogether (Butler,
2009: 74–5). These visual, cultural, affective frames of war largely determine the
difference between “accident” and “atrocity.” Therefore, it is important to ask
what actually registers—representationally, affectively and interpretively—as atroc-
ity. How do certain events of death dealing get written as “atrocity” while other
events are framed as “business as usual” or legitimate actions? To these questions
we now turn.
Disowning atrocity—the “Mukaradeeb Massacre”

On May 19, 2004, only a few months after the torture and violence at Abu Ghraib
prison came to light, US military “ground forces” and “aircraft” attacked a large
group of people in the rural Iraqi town of Mukaradeeb—a desert town sitting just
miles from the Syrian border. From reports, approximately 40–45 Iraqis were killed
in the attack, including several women and 14–15 children under the age of twelve.
While both the exact number of dead and whether or not they were civilians or
“combatants” are key points the US military disputes, at least 40 people, many
of them children, were killed in the act. From the outset the US military main-
tained, in fact still maintains, the “target” was a “safe house” where foreign fighters
would resupply and cross the Iraqi/Syrian border to join insurgencies. Pentagon
officials provided photographic evidence of weapons, detonators, foreign passports
and satellite equipment, which for them justified the attack. But contesting “offi-
cial” military accounts, the AP published photographs and video, taken just before
the attack, of a wedding with several women and children in attendance. The
UK newspaper the Guardian also interviewed survivors who provided first-hand
accounts of the assault and supported assertions that the gathering was in fact a
wedding celebration.
From what we can gather from media reports and government press briefings,
events unfolded something like this: around 10:30 PM, wedding party members
noticed vehicle headlights of US ground forces crossing the desert and heading
toward them. They disbanded the party and most went to sleep. Then, at approxi-
mately 3:00 AM, the first missile strikes from a C-130 gunship hit their target.
More missiles followed as the Iraqis attempted to flee. Then, a second wave of
helicopters unloaded a group of Marines who pursued and fired on the gathering
from the ground. After the fighting, Marines used explosives to destroy several of
the still-standing buildings. These seem to be the facts of the attack that left some 40
Iraqis—many of them women and children—dead and several others maimed and
injured. In what follows, we problematize various representations of this particular
“incident” to reveal the ways in which US state killing is disowned or denied,

ultimately facilitating the “fetishistic disavowal” and “spiral of denial” of civilian
deaths in US wars.
In response to allegations and video evidence that women and children were
killed in the attack, US military officials reflexively countered with a variety of dis-
owning, neutralizing if not incredulous discourses. During a press briefing, Major
General James Mattis, commander of the 1st Marine Division, quipped that he
didn’t have to “apologize for the conduct of [his] Marines,” and when questioned
whether the gathering was actually a wedding, defiantly questioned: “How many
people go into the middle of the desert 10 miles from the Syrian border to hold a
wedding 80 miles from the nearest civilization?” (Chan, 2004). Ultimately, Mattis
admonished the media to “not be naïve. Bad things happen in wars,” apparently
resigning the death of innocent women and children as simply one of the many
“bad things” that “happen in wars” (Swain, 2004). The US government’s position
that the “target” in Mukaradeeb was in fact a “suspected foreign fighter safe house”
and not a wedding is a clear example of what Cohen (2001) calls interpretive denial.
That is, denial is evoked not in a literal sense—“this did not happen”—but rather,
“yes, something did happen, but not what you think happened.” That the events
are not what they appear and that the public is not in the position to “know” is a
sometimes subtle but thoroughly political process, circumscribed by asymmetrical
relations of authority. So, for instance, Mattis’ insistence that majority of the dead
were “military-aged men” is a linguistic sleight of hand equating “military-aged
men” to insurgents and hence justifiably killable—a sleight of hand that continues
with the Obama administration’s “signature” drone strikes in Pakistan and else-
where (Wall and Monahan, 2011). Despite video and photographic evidence to
the contrary, US military officials denied that children were killed and ultimately
conceded only six women were lost in the attack, stubbornly framing the remain-
ing dead as homogenous, “military-aged men.”
Underpinning this interpretive denial that the Mukaradeeb attack was anything
but a massacre of civilians are Orientalist, racist cultural logics that mark the Iraqi
dead as “filthy” and “backward” and hence killable. For instance, descriptions of
Mukaradeeb as a “rat’s nest” that was “80 miles from the nearest civilization”
marked the village as an Arab netherworld and its people as uncivilized rodents.
These comments are hardly an aberration, as a variety of commentators have dem-
onstrated the ways that the colonial past impinges on what Gregory (2004) calls
“the colonial present”—largely through the racialized tropes US soldiers and offi-
cials deploy in order to dehumanize difference and justify subjugation (Wall, 2011a;
Wall, 2011b).
Even though visual evidence forced the Pentagon to conduct an investigation
into the “inconsistencies” between the various accounts, officials ultimately found
that the attack followed the “rules of engagement” and hence rendered the kill-
ings nothing more than a “bad thing,” but a predictable and acceptable feature of
warfare. To understand the cultural life of the dead in regards to Mukaradeeb, it
is worth considering the ways that the New York Times (NYT) and the Washington
Post (WP), widely read and influential US newspapers, represented the violence at
Mukaradeeb1 in 2004. Unsurprisingly, both newspapers failed to give the killings
significant attention, and following the military’s own “investigation” and subse-
quent declaration absolving them of responsibility, the US media stopped speaking
of the dead of Mukaradeeb. Ultimately, the WP ran three headline stories, the first
of which made the front page, and made a few mentions of the “incident” in its
ongoing coverage of Iraq. Similarly, the NYT granted the Mukaradeeb killings
four headline articles and a few more mentions of the village in its ongoing war
coverage. With little attention paid to a US attack that left more than 40 dead, we
can describe the Mukaradeeb killings—to borrow Dylan Rodríguez’s (2006) apt
phrase—as a (non)scene, in that the media never identified the attack as a major
story in need of more thorough in-depth reporting and investigation.
Perhaps explaining the paucity of coverage, the NYT and WP staff in Iraq at the
time were said to have been “holed up” in Baghdad and unable to investigate the
Mukaradeeb killings. In a July 18 column titled “Reporting, and Surviving, Iraq’s
Dangers”, Ian Fisher of the NYT reported how “most of [the Western reporters]
have been locked down in Baghdad for months,” acknowledging “the list of blank
spots from the last crucial months of this war is long.” Fisher went on to ask, “did
American bombs in May wipe out a wedding party of women and children or
what the military called a ‘rat’s nest’ of foreigners being smuggled in from Syria?”
Answering the question, he states, “It was impossible to know any of this first-
hand, in the kind of detail and nuance that yields the shrewdest insights. Our main
source was the American military—fine for what it is, but not nearly enough to
assemble the full picture.”
Even if the coverage was limited in scope, the WP and NYT did actually run
stories on the Mukaradeeb killings, but within the conjoined frames of ambigu-
ity and uncertainty. That is, the papers framed their reporting largely around Iraqi
claims and US military counter-claims, between “wedding” and legitimate military
“target.” In other words, the intention of so-called objective, “neutral” report-
ing fashions a “he said, she said” dialectic that disarticulates and devisualizes the
violence of the killings from the cultural vocabularies of atrocity, massacre and the
juridical “war crime.” That is, the framing of the Mukaradeeb killings as primarily
a story of a rhetorical back-and-forth circumscribes doubt into the very structure of
the media narratives. Ambiguity or doubt about the “truth claims” surrounding the
US attack—in regards to the accuracy of the video evidence, eyewitness testimony
and the counter-claims by the US military—disowns the materiality of violence,
ordering it as secondary in the narrative, not first.
In addition, that both the WP and NYT downplayed the actions of “boots on
the ground” military forces reveals an important dimension of the framing of the
case. To be sure, aerial violence was deployed, but US soldiers with “boots on the
ground” seem to have played a critical, brutal role. In fact, witnesses and survi-
vors claimed that US “ground forces” were shooting people as they fled (McCa-
rthy, 2004). Although both media outlets briefly mention “ground forces,” the
attack was mainly described with the distant and surgical language of an “aerial
operation.” Tellingly, US media reports rarely, if ever, mention the “fingers” of

“pilots” that fire missiles, but rather that “US aircraft bombed” a site—a discursive
ruse transforming human agency into a technological determinism. Downplaying the
deliberate actions of soldiers with fingers on triggers also somehow supports the
explanation that the killings at Mukaradeeb were the product of an errant or “acci-
dental bombing.” As Kramer (this volume; 2009) notes, US aerial bombing—as
one of the central liturgies of US state violence—is an increasingly normalized form
of organized violence.
Both newspapers represented Mukaradeeb through the frames of burial and
mourning, with photographs of bodies wrapped in burial shrouds, Iraqi citizens
digging graves and crying.
But all of these photographs, quiet, vague and ambiguous in their own right,
perform a different sort of emotionality when coupled with the text of the articles,
headlines and captions. This coupling, what Roland Barthes (1977) called “anchor-
age,” frames these burial and mourning scenes as the dispute over “legitimate vio-
lence” or “state crime” over unintended “accident” or organized “massacre”—
locating the carefully wrapped bodies in a liminality somewhere between insurgents
or civilians. The photos and anchoring discourses reproduce the frame of a rhetorical
quarrel. The caption of one particular photo—the “shepherd’s hands”—forcefully
highlights how the papers’ representations depoliticized the Mukaradeeb killings as
an unresolved, perhaps unresolvable dispute between competing claims: “Mahdi
Nawaf, a shepherd, at a funeral for people who were killed Wednesday in a United
States missile strike, showed pictures yesterday of people he said were killed at what
he said was a wedding” (emphasis ours). Strangely, these images and their anchoring
discourses may actually help validate the oft-expressed compassion and “good inten-
tions” of US military actions. That is, the media’s representation of Iraqi mourning
here might be understood as a way of disowning the intentionality of US violence
by representationally performing the democratic, civilized and peaceful intentions
of the US military (Neisser, 2002). In this way, the compassionate and mournful
visualities presented by the WP and NYT can be seen as frames that construct and
reaffirm the myth of a compassionate and philanthropic empire. The framing of
the Mukaradeeb killings as primarily a subjunctive (“as if”) event, and never doing
justice to the lived experiences of those in Mukaradeeb on May 19, serves to dis-
articulate US responsibility away from “atrocity” by circumscribing ambiguity into
the very structure of the narrative construction of the violence. That is, uncertainty
about the “truth claims” surrounding the US attack—in regards to the accuracy of
the AP video and eyewitness testimony—and the circulation of this uncertainty as
being the story obscures more than it reveals and hence, in our view, can also be
understood as itself a form of symbolic violence against those Iraqi victims.
Naming violence and the accumulation of atrocities

When compared to the horrors of Abu Ghraib, the killings at Mukaradeeb received
little sustained mainstream media attention in the US; and when the media did give
attention, as we have suggested, it tended to disown, or downplay, the violence and

hence turn the “Mukaradeeb incident” more into an unresolved lovers’ quarrel or
an sad accident rather than a preventable and bloody “atrocity” that demands more
serious scrutiny and answers. However, non-US media outlets covered the story
of Mukaradeeb with far less sanitizing language, preferring instead the language of
“massacre” and “atrocity.” On this, it is useful to juxtapose the WP and NYT cov-
erage with that of the Guardian, a British newspaper. While the Guardian did not
provide significantly more coverage on Mukaradeeb than its US counterparts did,
it did frame the story much differently. Though the Guardian’s Rory McCarthy did
report the competing versions of events offered by Iraqi and US sources, his first of
two articles resisted presenting the Mukaradeeb killings as primarily a “he said, she
said” dispute; rather McCarthy’s narrative focuses on the materiality of wounding.
In this sense, McCarthy starts by imagining, and in turn creates a space of facilita-
tion where the voices of the wounded—regardless of their status as legal or worthy
subjects—become animated.
For instance, the headline of one of McCarthy’s articles reads “‘US soldiers
started to shoot us, one by one’: Survivors describe wedding massacre as gener-
als refuse to apologise” (McCarthy, 2004). This title borrows a quote provided to
McCarthy by an “on the ground” witness, indeed survivor, and hence to speak
directly for the actual dead lives. In addition, McCarthy’s report does not simply
frame the attack as an aerial bombing, but clearly highlights actions of US sol-
diers on the ground and in the air. Unlike US journalists “holed up in Baghdad,”
McCarthy traveled to the hospital in Ramadi and recorded the survivors’ first-hand
accounts of the attack. Quoting survivor Haleema Shihab, who recalled “We went
out of the house and the American soldiers started to shoot us. They were shooting
low on the ground and targeting us one by one,” he describes how Mrs. Shihab
ran from US forces, carrying her youngest child in her arms while her two boys,
Ali and Hamza, followed close behind. In the chaos of the escape, an explosion
knocked Haleema to the ground, fracturing her legs and killing Ali and Hamza.
She explained, “I fell into the mud and an American soldier came and kicked me.
I pretended to be dead so he wouldn’t kill me. My youngest child was alive next
to me.” McCarthy also quotes “Mr. Nawaf,” the shepherd discussed earlier, who
stated, “I saw something that nobody ever saw in this world. There were children’s
bodies cut into pieces, women cut into pieces, men cut into pieces.” Nawaf, who
lost his 25-year-old daughter and his two grandchildren, 4 and 6 years old, urged,
“I found Raad dead in her arms. The other boy was lying beside her. I found only
his head. The Americans call these people foreign fighters. It is a lie. I just want one
piece of evidence of what they are saying.”
By giving voice to those attacked survivors by literally interviewing them, but
also by inserting these into his own narrative highlighting the bodily carnage, McCa-
rthy helps imagine and create a space of facilitation, where the dead—whether vic-
tim or combatant—are ventriloquated, as Derrida might say, and return to haunt
the living. In terms of emotional impact, McCarthy’s narrative produces a different
reaction—it hits you in the gut—whereas the WP and NYT narratives effectively
obscure the attack’s brutality. These narratives seem to remove the possibility of a
visceral reaction being induced in the reader by focusing so much on the “he said,
she said” dispute. Conversely, through the bodily experiences of the wounded
and voices and names of the dead, McCarthy narrates the Mukaradeeb killings as
“massacre” and “atrocity” rather than a sanitized US military operation or even an
“accidental bombing.” That is, his narrative starts from the point of view of the
victims and hence provides us with a completely different understanding of the
“incident.” The WP and NYT coverage, even the sympathetic images we discussed
earlier, is written from the perspective of the US military. Indeed, if the victims of
the killing state could “name the violence,” as Cavarero (2011) states, perhaps the
debate between “intentional” and “unintentional” violence would be more easily
understood as imperial word play. The power of McCarthy’s reporting, we might
say, more justly speaks for those attacked in Mukaradeeb by US ground and air
troops on May 19, 2004—and it therefore addresses the reader as a call for justice.
Although McCarthy’s narrative refuses to disown US military violence and
instead exposes it by realistically depicting the suffering and carnage unleashed
on the Mukaradeeb wedding guests, we must proceed with caution. Ultimately,
McCarthy’s narrative is circumscribed by a conventionality that sees violence as
always linked to identifiable actors or institutions, what Žižek (2008) calls “subjec-
tive violence.” That is, violence that is only possible with an acting subject and
hence the production of “good” or “bad” people. We can see this at play in the
conventional frame of “war crime,” which becomes useful only to the extent that
it is able to expand itself to an inclusiveness that resists the discourses of intention,
physical proximity and relative coherence of offenders and victims. In other words,
the war crime frame, in which McCarthy’s narrative is situated in our view, still
reifies popular understandings of violence, not to mention “crime,” by framing the
killings of Mukaradeeb as an event between individual victims and offender sol-
diers, or individual victims and institutional offenders such as the US military. Yet
the terms “massacre” and “atrocity” although politically necessary and useful, often
preclude any serious consideration of the structural contexts in which the killings
took place. That is, “massacre” is a cousin to “accident,” in that the two easily can
become singularized into an “incident” where narratives center on intentionality,
local proximity and identifiable subjects. Therefore, throughout the chapter we
have chosen to put “incident” in quotations because the word, especially in the
context of projects of mass killing, tends to reaffirm common understandings of
violence by making “incidents” like Mukaradeeb as primarily an isolated event of
subjective violence.
Conversely, the killings at Mukaradeeb, we suggest, must be understood as not
merely an unfortunate accident or even an isolated incident of subjective vio-
lence, but a foreseeable, routinized and common-sense manifestation of the logics
and practical projects of capital accumulation—or what Žižek (2008) calls “objec-
tive” violence. Therefore, it is a useful exercise to step back from the events at
Mukaradeeb to confront the systemic violence of capitalist order coursing through
the veins of US popular culture that inscribes broader systems of violence that
sustain US military projects. So, for instance, at the time of this writing, Zero Dark
Thirty, a film detailing the supposed events leading to the capture and killing of
Osama Bin Laden, was released to considerable fanfare. A clear focus of the film
is the “enhanced interrogation techniques”—torture—used to gather intelligence
on Bin Laden. On the brutality of the torture scenes, the film’s director, Katherine
Bigelow, argued that artists such as she “know that depiction is not endorsement,”
and if it were, no artist “could delve into the thorny subjects of our time.” Yet, as
Žižek (2011) argues, it is precisely this sort of neutral “depiction” making up the
obscene underside of US popular culture that normalizes and supports imperial-
ist power. That is, torture is an act so repulsive and fundamentally abhorrent that
should be beyond discussion, something that must be rejected outright. To simply
allow the “viewer to judge” all the horrific details that led to the capture of Bin
Laden, without critical reflection, is the same as acquiescence. In other words, for
Žižek, to simply “depict” is to endorse.
Removed from grim reality, represented in a neutral way that supposedly per-
mits the “viewer to judge” Zero Dark Thirty and the reporting of the Mukaradeeb
killings are part of a grammar that fashions war–killing–violence as fact, an una-
voidable and livable part of who “we” are. Yet, to deliberate only the ethics of
subjective, visible violence—like the film’s protagonist who tortured to “get the
job done” or soldiers that “do what they are told” and “follow orders”—is to over-
look the obscene background of objective violence that is propelled, in fact neces-
sitated, by capitalist imperatives. Here, in the horrific foreground of war, those
tortured in the hunt for Saddam Hussein, Osama Bin Laden and countless “enemy
combatants” and “insurgents” are fodder propping up the background of objective
violence transforming torture into “enhanced interrogation,” the killing of women
and children into “collateral damage” and a war for capitalist accumulation into a
“war on terror.”
Conclusion
For certain, the Mukaradeeb massacre details profound indifference to subjective
violence–war dead–innocent civilians, “non-combatants”, men and women, old
and young, ripped apart by bombs and bullets. This indifference was also magnified
by the comments made by US military commanders in regards to the Mukaradeeb
killings stating that the “bad people have weddings too” and that the village was a
“rat’s nest.” Yet these brutalities and statements are only the final tragic outcome
and representative of far more long-standing systems of symbolic and systematic
violence. In the first volume of Capital, and specifically in his discussion on primi-
tive accumulation, Marx famously writes that “In actual history, it is a notorious
fact that conquest, enslavement, robbery, murder, in short, force, play the greatest
part” (quoted in Negri, 1999: 252). Yet, as Ellen Meiksins Wood (2005) suggests,
although “extra-economic” force, or violence and coercion, is central to capital-
ist order, this relationship is often obscured, although in times of outright plunder
or occupation this relationship becomes more apparent. As we were writing this
chapter, the tenth anniversary of the 2003 US invasion of Iraq came and went,
including the centenary of the “fall of Baghdad,” marked symbolically by the tel-
evised toppling of a large statue of Saddam Hussein. A little over a month later,
on May 26, 2003, Paul Bremer, head of the US Coalition Provisional Authority,
(in)famously exclaimed that Iraq was “open for business.” In addition to laying
bare a certain imperial callousness, Bremer’s comment also starkly demonstrates and
condenses, in a mere three words, the intimate relations between capitalist impera-
tives and state violence.
In this light, the US invasion of Iraq and all of the dead and maimed bodies,
including the lives extinguished at Mukaradeeb, can usefully be understood as but
particular moments within the long, bloody history of capital—the recurring vio-
lence of primitive accumulation (Retort, 2005). Indeed, the occupation of Iraq and
the overarching “war on terror” and the specific atrocities of Haditha, Abu Ghraib,
and Mukaradeeb, exemplify “disaster capitalism” (Klein, 2007) that fabricates or
converts tragedy and devastation into business opportunities. The massive profits
scored by the likes of CACI, DynCorp, Halliburton, General Dynamics, Blackwa-
ter, Exxon, Chevron powerfully support this assertion. Thus we can say without
hesitation, that the history of the accumulation of capital is also a history of the
accumulation of atrocities.
Note
1 In order to track how the “incident” was framed by the mass media, we searched media
reports for “Mukaradeeb” using the Lexis Nexis academic database for a two month
period following the attack (May 19, 2004–July 19, 2004).
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4
THE VICTIMIZATION OF
CHILDREN IN STATE-RUN
HOMES IN NEW ZEALAND
Elizabeth Stanley
Introduction
In many liberal democracies, much recent criminal justice action and policy has
developed to ‘give voice’ to victims of crime. From the growth of victim surveys
to the introduction of victim impact statements or the consolidation of victim-
focused non-governmental organizations that increasingly drive legal and policy
responses, victims have been centralized as a key criminal justice concern (Garland,
2001; Pratt and Clark, 2005; Walklate, 2011). Victim policy has, however, been
particularly led by emotional and political responses. That is, who is identified as
a victim – and how those victims or their offenders are responded to – is largely
dependent on who can speak the loudest or whether those harmed fit within state-
defined categories of victimization (Walklate, 2005). That is, victims are more
readily accepted as victims if their harms, motivations, interests and behaviours
reflect state interests.1
Not all victims are therefore created equal and who can be designated as a
victim is an intensely political process – such that the label of ‘victim’ is produced
through processes of interpretation, organization and representation (Holstein
and Miller, 1990) in which priority is given to those who have been victimized
by offences against the state. This chapter reflects on these issues in relation to
victims of state-led institutional violence in New Zealand (NZ). Drawing upon
research with those who state that they were abused as children in Social Wel-
fare Homes, the chapter highlights the legacy of state violence across victims’
lifetimes.
The author’s research project has involved a documentary analysis of official
records appertaining to the lives of 105 claimants (8 women, 97 men) – such as
their social welfare records, psychiatric reports, health records, counselling docu-
ments, banking statements, corrections records and legal statements. The author
Victimization of children in state-run homes 47
has also undertaken interviews with 45 claimants (4 women, 41 men) about their
experiences, how their time in social welfare care has impacted upon their lives,
and their attempts to gain acknowledgement. The research shows how these vic-
tims have ‘come to terms’ with their victimization and how, in this journey, they
have subsequently sought recognition from the government. Yet, those who self-
identify as victims, and who want official acknowledgement of their victimization,
face numerous obstacles. This work demonstrates that the official recognition of
victimhood is subject to political, social and legal constructions, and is dependent
upon the victim’s own structural position and capabilities. Among other elements,
the recognition of victims of state-led violence is linked to representations of inno-
cence, the status of perpetrators, legal norms and categories, as well as structural
relations of power. For victims, to seek official or social recognition of state crime
is a risky process and one that is beset with personal benefits as well as multiple
costs.
The legacy of abuse in state institutions

Social Welfare Homes2 in NZ were mainly established from the 1930s to the 1970s.
They operated to hold children who had been removed from their family homes
by police or social workers for reasons of offending behaviour or welfare, such that
children were experiencing neglect or ill-treatment, or that they were seen to be
‘out of parental control’ (HRC, 1982). The institutions varied in their location,
function and size. Some Homes were situated in isolated areas while others were
in city locations. Most Homes catered for boys, although there were specific Girls’
Homes as well as mixed institutions. Certain Homes focused on long-term deten-
tion and received children from across the country, while others attended to short-
term, local placements. And, while many Homes held between 20 and 40 children,
who had their own room within small units, large institutions – like Kohitere
(a long-term Boys’ Home) – held over 100 children in ‘barrack-style’ dormitories
(MSD, 2006).
The regulatory Manuals that governed the administration of the Homes were
relatively benign. They advised staff to be supportive and respectful of their
charges, even when the child’s behaviour was deemed to be unacceptable. Rules
were to be kept to a minimum, punishments had to be directed to assisting the
child and corporal punishment was to be used as a last resort (MSD, 2006). Manuals
encouraged a relaxed environment where children could engage in sociable shared
meals, unforced recreational activities, music, arts and crafts, films and hobbies,
as well as constructive (educational) learning each day (many Homes had schools
on site). The placement of children in ‘secure’ units was to be undertaken as an
emergency measure, for limited periods, and subject to continual review (HRC,
1982; MSD, 2006). This progressive framework was not matched by stringent
inspection, monitoring or oversight. The Department of Social Welfare Head
Office rarely undertook inspections, external Visiting Committees (established in
the mid-1970s) were ad hoc in their approach, and Principals of the institutions
48 Elizabeth Stanley
had significant autonomy and independence in the way that Homes were run
(MSD, 2006).
With limited resources, Homes were often poorly maintained and they employed
inexperienced and ill-trained staff.3 From the 1960s to the 1980s, as young people
were increasingly identified as a ‘social problem’, tens of thousands of children
passed through the Homes. Yet, during this period, concerns began to develop
that institutionalization was not working. Many Homes were overcrowded,
(re)offending rates were high, Māori and Pacific children were disproportionately
held, and numerous ‘allegations of cruel and inhuman treatment towards children’
had begun to emerge (ACORD, 1978: i). These concerns eventually led to the
complete overhaul of the youth justice system in NZ, with the introduction of the
Children, Young Persons and their Families Act in 1989 that pursued a framework
of deinstitutionalization and restorative justice.
The current claims

Since 2000, over 600 people have pursued legal claims against the NZ government
for the harms they suffered, as children, in the Homes. The vast majority of these
claims relate to events from the 1970s until the late 1980s. Most (n = 90) of the
105 claimants in this study were placed in the Homes as a result of family problems.
For some children, family life was intensely abusive. Social workers continually
observed children with bruises and broken limbs, some were deemed to be vic-
tims of sexual violence by family members, whānau4 or friends. Other children
were facing neglect, due to family breakdown or parental struggles with poverty,
mental health or alcohol or drug abuse. For some children (n = 44), these stressful
experiences resulted in behaviours such as truancy from school or minor offending
(stealing money left for the ‘milk-man’ or bottles of fizzy drink from local shops)
that brought their own lives under official scrutiny and opprobrium. All of these
children – whether they were removed for family or offending reasons – were
placed together in the Homes; and, with an average age of 10.6 years at removal,
most children faced many years of institutional care.
The institutions to which they were sent were often chaotic. At best, they
were busy, mechanical places and, once removed from their family home, children
tended to progress from one institution to the next. In numerous instances, chil-
dren were effectively ‘ghosted’ – that is, they would be moved repeatedly (from file
analysis, it is unremarkable for children to have been moved to over 12 different
placements over a period of, say, five years). Indeed, sometimes, children and their
families would not know where they were. Children would be driven for miles, or
flown, between institutions. For example, one boy, Kevin,5 actually thought that
he had left NZ for another country as he was transported from the North Island of
NZ to the South Island. Some children got lost in the system.
On arrival, children would be made fit for the institution. Most children were
physically stripped, scrubbed, deloused and refitted in communal clothing; their
possessions were stored (and often subsequently lost). The vast majority were then
placed in isolation for a few days, sometimes longer, in secure units that usually
had no furniture, no mattress or bedding during the day – and then, as Goffman
(1961: 25) puts it, when their ‘sense of self’ was sufficiently eroded, they were
placed into the mainstream Home. Here, children endured ‘christening’ beatings
from their counterparts. These institutions privileged violent, homophobic cultures
that operated along strict hierarchies (cf. Jewkes, 2008). Institutions generally had a
‘king-pin’ and their followers who would control the wings, often in exchange for
privileges and favours, such as the best clothes or more frequent outings, from the
staff. Initiation attacks ensured that new arrivals knew the ‘rules’ and the hierarchy
from the outset.
The 105 claimants in this study have detailed frequent physical violations by
staff and other children; sexual attacks – including forced masturbation, oral sex
and rape – were common occurrences; bullying was a daily reality; and children
faced punishments that went beyond the bounds of acceptability for the time. If
they misbehaved or were seen to be a nuisance, children faced the denial of food
or water, or they were restrained and placed in solitary, or made to scrub the yard
with their own toothbrush, or stripped and made to stand for a day holding a medi-
cine ball above their head, or made to stand on ‘a line’ for hours or even days on
end, or they were sent for the ‘zap’ – that is, in four cases, children were taken to
a psychiatric hospital and given electroconvulsive therapy without anaesthetic as a
punishment. Life, as Rangi6 remarks, ‘was just hell’.
On release, freedom tended to be short-lived, as young people had limited social
connections or support for accommodation, employment, education or training
options. Moreover, given their poor developmental, educational and social expe-
riences, most of these children just did not have the capacity to forge new, pro-
ductive lives. Instead, for almost a third (n = 31), the Homes were followed by
involvement in gangs. And, by the age of 20, just five of the 105 had escaped fur-
ther youth detention, imprisonment or mental health institutionalization. Across
their lifetimes, most of these claimants have struggled with alcohol and drug abuse,
mental health problems, disabilities, homelessness or unemployment. Overall, it is
clear that these victims – who suffered state-led victimization over numerous years
– have been made intensely vulnerable to social and economic inequalities, and
many struggle to cope. Perhaps unsurprisingly, most of these victims now also have
a deep distrust of state agencies and their employees.
Victimization as a journey
For these 105 claimants, the realization of having been victimized has not been
linked to a neat or absolute event. Rather, it has been a journey. Their own iden-
tification as being a victim, and their recognition of the consequences of that vic-
timization, has emerged over their lifetimes (Walklate, 2011). Numerous claimants
highlighted their attempts to actively or subconsciously quell this thinking about
victimization. They turned to heavy drinking, drug use, or became immersed in
offending as a means of escape.
Maui: I was ashamed of that sexual abuse . . . I was ashamed of it and I just
didn’t want to talk about it . . . I used to drink and do drugs and
block out all those things and then, you know, I was going to keep
it as a secret.7
James: It was just like living in a vacuum. . . . I’ve just lived in denial for a
lot of years. Took a lot of drugs and carried on. . . . When you’re try-
ing to be a hard out bikie [member of motorcycle gang] you haven’t
got time for self-analysing.8
Yet, these techniques did not have a long ‘shelf-life’. Indeed, almost all interview-
ees reflected on their institutional peers who suffered early deaths as a consequence
of their own ‘escape’ activities of substance abuse or self-harm. For the survivors,
these avoidance activities just provided a temporary cover and, for some claimants,
these strategies ended in events or periods of time where life became too difficult.
Lee: I nearly committed suicide . . . and . . . that was the first time I’ve
talked about this [his abuse] to anyone.9
Samuel: All I wanted to do was kill myself and be done with it. I didn’t
want to wake up to see another day. I tried several times but obvi-
ously I’m here now today. I would never ever dream about doing
it again, so I didn’t have a very pleasant life.10
Suicide attempts and severe depression have been common features of victims’
lives. These kinds of experiences ultimately led many victims to realize that the past
was not going away, that it needed to be faced and dealt with. For numerous claim-
ants, the awareness of being a victim has developed over many years. For some, the
process of maturing and having their own children has been a trigger to this self-
reflection. This has often dovetailed with civilizing socio-cultural changes in attitudes
towards child abuse and sexual or physical violence (Elias, 2000). For others, time has
given them increased strength and enhanced personal skills to face their past.
Jason: . . . maturity played a really big part in it you know. I mean I’m at an
age now when enough’s enough. You know, I’m older, wiser, I can
think in the big picture a lot clearer than I used to be able to and I’ve
done a lot of work, a lot of self-growth or self-development or soul
searching, whatever you want to call it.11
Greg: I’ve had to heal myself and I’m still doing it. It’s not, like it’s never
– how do I say this – it’s never going to be over. You know it’s a
continual thing.12
Yet, these personal journeys have also encompassed the need to be officially recog-
nized as victims. Through word-of-mouth or media, these claimants have become
aware of the mediation, legal and truth-recovery processes being pursued by
others13 and have decided to, as Greg put it, ‘stand up and be counted’.14 They
want their personal acceptance of victimization to be acknowledged by state agen-

cies and NZ society.
The designation of victims

As Quinney (1972) identified, whose suffering we recognize is a question of social
construction. Casting someone as a victim reaffirms the values and moralities of
social life. It sets out that ‘we’ consider the act to be an offence that needs to be
recognized and dealt with (Miers, 1990). Yet, the designation of victims is fraught
with uncertainties. For instance, the determination of victim status is linked to ‘the
sufferer’s personal characteristics and circumstances, or the nature of his or her suf-
fering – its duration, intensity, impact and extent’ (Miers, 1990: 222) as well as the
‘identities, bases of influence, and rhetorics and counter rhetorics of contesting par-
ties’ (Holstein and Miller, 1990: 114). It is evident, for example, that we regularly
do not recognize certain kinds of suffering, particularly if the claimants are deemed
to be dangerous, blameworthy or not pitiable (Walklate, 2011). With that in mind,
this chapter now considers four elements, raised by these claimants, in relation to
the obstacles they have faced in gaining recognition as victims of state violence and
harm. These are, that their designation as a victim is: (1) connected to constructions
of innocent or ‘ideal’ victims; (2) dependent on representations of their offenders;
(3) linked to their own structural position and capabilities; and (4) led by a nar-
rowed set of legally digestible ‘facts’. Each of these elements has excluded these
victims, and their experiences, from official or social attention and protection.
The construction of an innocent or ‘ideal’ victim

Nils Christie’s (1986) seminal work highlighted the subjective nature of victim-
hood. Among other attributes, he noted that the ‘ideal victim’ would be respect-
able, blameless, relatively powerless and a stranger to their offender. The ‘ideal’
victim is rare in real terms, but in their ‘complete and legitimate status’ they have
strong discursive power and are often used as the standard against which all other
victims are judged (Christie, 1986: 18). Thus, victims deemed ‘deserving’ of wider
support are those who are regarded as passive (Quinney, 1972), innocent (McEvoy
and McConnachie, 2012; McShane and Williams, 1992) and vulnerable (Quinney,
1972; Walklate, 2011).
During this research, victims continually reflected upon how their perceived
lack of passivity, innocence or vulnerability undermined their attempts to be rec-
ognized as a victim. This happened while they were children – by just being in the
Homes they were represented by the state as ‘trouble’ – and into adulthood (when
many did become offenders). In the hierarchy of victims, they were and remain at
the bottom. They are considered to be active, guilty and engaged in risky or harm-
ful behaviour, and so they do not have legitimacy as victims.
For example, within the Homes, many children learnt to ‘harden up’, they
learnt to fight and used confrontation as a means to actively survive the violent
institutional culture.
Raewyn: I didn’t make friends very easily because I was always scared all
the time . . . I soon learnt that I had to harden up if I was going
to get anywhere because . . . I got the snot beaten out of me. If it
wasn’t from the staff it was from the other girls . . . And . . . yeah
as I started getting older I learnt to handle myself a lot better and
then I started doing the tattoos and the drugs thing and the smok-
ing so I’d fit in more, you know. I didn’t want to . . . look like the
oddball, you know, so I started mimicking all the behaviours they
had . . . and I learnt to be really hard.15
Garry: I was getting bullied but . . . it was actually at Hokio [Boys’ Home]
where I learned to fight back, you know what I mean. It was to
keep me from getting the bash . . . But that’s where I started to
go against, right against authority eh and I mean that. Anyone in a
position of authority and that was it you know. Yeah. Yeah, I was
there.16
Violence was normalized and legitimized throughout the institutions. Children

learnt that fighting and ‘hardening up’ were necessary to protect themselves, but,
in their attempts to survive the institutions and deal with their own vulnerabilities,
they became tainted as trouble. As such, complaining children were not to be
trusted and, within the Homes, they were regularly told that they were lying.
John: Twice, I went to complain about things that were happening and was
basically told that I was full of shit and that it didn’t happen and to
keep my mouth shut or worse would happen to me.17
Bill: I tried to tell her but she said ‘Oh, bullshit’. She never believed me
because she said I’m a bloody good liar and she just put it down to
lying.18
The approach of staff to ignore complaints happened so often that children would
eventually engage in self-censorship. There was nothing to be gained from ‘telling’;
in fact, it could just get you into trouble.
Ernest: It came from both sides. So the staff would say ‘We don’t like tell-
tales, like narks’. The boys would say ‘You narked on us!’, so you
learnt very quickly to keep your mouth shut and eyes open and say
nothing.19
Arthur: We were all too scared to let out to anyone for fear of being called a
liar and be ganged up upon. Not only by the other residents but by
staff as well.20
Into adulthood, victims’ attempts to gain recognition have also been thwarted
by representations of their status. As Christie (1986: 21) notes, another element in
being an ‘ideal victim’ is that ‘she (or sometimes he) must be strong enough to be
listened to, or dare to talk. But she (he) must at the very same time be weak enough
not to become a threat to other important interests’ (italics in original). Victims are more
likely to gain approval if they are ‘in some way vulnerable individuals’ (Quinney,
1972: 318) who perform a ‘social role’ that adheres to certain victim attributes. To
be cast as ideal victims, they need to act in ways that are deemed appropriate, such
that they are distraught but their anger is tempered, they are clearly not responsible
for their own victimization, they fully co-operate with state agencies and are grate-
ful for any recognition or redress (Jordan, 2008; Miers, 1990; Quinney, 1972). If
they do not ‘conform to . . . expectations, they diminish their chances of being
sympathetically treated’ and may even totally undermine their status as a deserving
victim, or even their status as a victim at all (Miers, 1990: 227; Walklate, 2007).
Victims in this research have not gained sympathetic treatment for their claims.
They argue that they are faced with common perceptions that they are ultimately
responsible for their treatment because they are people trying to make a ‘quick
buck’ or that they must have been, or are, offenders (and consequently are deserv-
ing of harsh treatment).21
Nanette: They’re treating us like we’re a pack of criminals trying to get

money out of them. That’s just disgusting that they can treat us
that way. And, I’m not criminally minded!22
Keith: They’re quite happy to portray us as bad, they’re quite happy for
that perception to be out there, that we’re not to be trusted . . .
that is the image which they’re quite happy to have projected
at you. That we are bad people, we’re a ragtag bunch of people
trying to extort money from the state. Nothing could be further
from the truth . . . it’s just disgraceful, it’s disrespectful for us. It’s
just another way of abdicating responsibility, it’s bordering on evil
actually in my book.23
During research interviews, victims have continually discussed how they are
tainted – as having the same backgrounds (they are criminal), the same motives
(they are vengeful, self-serving, state-loathing and financially driven) and the same
deficiencies as claimants (they are late with their claims, their recollections are hazy
due to drug or alcohol use, they exaggerate). Such characteristics negate the fact that
claimants are vulnerable, distraught and not responsible for their victimization.
Besides, while it is often presumed that the categories of victims and offend-
ers are distinct, this reification does not conform to the reality of dynamic social
interactions (McShane and Williams, 1992). Taking this approach negates the fact
that offenders and victims are so often the same people, these are not impermeable
categories. Further, as McEvoy and McConnachie (2012: 533) also note, there is
often a ‘circularity of claims’, such that people become involved in violence as a
direct consequence of their own victimization. While many who passed through
the Homes have not engaged in offending, numerous children progressed to law-
breaking as a result of their experiences of state-led abuse and neglect.
Illya: . . . they just put us in an environment which was entirely set up for,
preparing us for, a pathway of violence, a cycle of violence . . . I’m
not entirely blaming them for the way I am now but it would have
been really lovely if they had helped us up . . . I don’t believe I was
that bad when I went in there but I just got worse and worse when
I came out.24
Roger: . . . you had fellows there, you know, sort of standing over you. We
had to go with them because we were the smallest ones in there.
And, you’d get to a house and they couldn’t get through the win-
dow so they’d throw you through, to go and unlock the door. So
that’s where it [offending] all started from . . . I think it [placement
in the Homes] just made me worse, you know.25
Such testimonies raise questions about how state-led victimization of children has
‘created criminals’ who have gone on to victimize others. Given these experiences,
these claimants highlight that we need a more nuanced account of victimhood
– one that can see a victim that is not solely linked to ‘complete innocence and
purity’ or total vulnerability (McEvoy and McConnachie, 2012: 535), but one
that can view a victim as also having the capacity to be confrontational, to make
demands and, at times, to also offend.
The status of the offender

Christie (1986: 25) also noted that the categories of victims and offenders ‘are inter-
dependent’, in that victims are recognized in relation to their offender, and vice
versa. Generally, ‘The ideal offender is . . . a distant being. The more foreign, the
better. The less humane, also the better . . . a person, or rather a non-person, who
creates anxiety’ (Christie, 1986: 28–9). Victims fare best when their offenders are
dangerous strangers, ‘a human being close to not being one’ (Christie, 1986: 26).
This type of imagery, as McShane and Williams (1992: 263) argue, ‘is boundary-
maintaining and necessary to the existence and maintenance of any social order’. In
the Homes, the fact that children were consistently identified as the offenders meant
that claims of workers being abusive or violent were readily dismissed and ignored.
Jason: ‘Oh you know Jason blah, blah, blah . . . oh where did you get that
lump on your face from?’ ‘Oh, A [staff member] slapped me.’ ‘Oh
right. I don’t think so, I don’t think A [staff member] would do that.’
‘He did, punched me in the face.’ ‘No it must have been play fight-
ing and you’ve fallen over.’ Like fuck!26
Des: Now, when you go into Kohitere [Boys’ Home] you are told you
have certain rights. You can write to this one, that one and that one.
And I actually wrote to the Director-General of Social Welfare. And
to this day I’ve still never heard a thing . . . So, you have the right
to complain just don’t do it out loud. Don’t write to the ministers,
don’t write to the principal, don’t complain.27
Naming state crime, and recognizing its victims, ‘is more than merely reporting
about a feature of the social world; it constitutes that world’ (Holstein and Miller,
1990: 105, italics in original). Perhaps part of the struggle, then, is that to accept
victimization is to also acknowledge that: the state engaged in significant violence
and harm against those most vulnerable in society; the state failed to take action, or
protect children, on receipt of complaints; and the state is complicit in the legacy
of harm and lost opportunities suffered by this group. To name the state as the
offender challenges the fundamental construction of victims and offenders, and it
undermines the legitimacy of state power or protection. As David28 opined, ‘they
just don’t want their system, their sacred system, [to be] seen as fallible’.
Yet, these victims are placed in a double bind – they have the state as their
offender, but they need the state as a protector and resolver of claims (Kauzlarich et
al., 2001). In this respect, these victims have directly experienced how states – more
than any other offenders – are able to use law and discursive management to ensure
that their offending is denied (Cohen, 2001). Victims have found that their claims
of victimhood have been negated through ‘magical administration’ in which social
or legal institutions and rules are organized in such a way that claims of violence are
quickly dismissed. Common official responses have included arguments that there
are no records of harms against victims and therefore claims cannot be officially
verified or that, under the Limitations Act, claims are just too late, regardless of
their compelling nature.29
Ged: They say ‘Can you have documentation?’ I say . . . some of us couldn’t
even read or write. We didn’t go round with a diary or tape recorder
or whatever to record it. Why would you want to record something
so horrible? And it’s just unreal what you’re asking. No we haven’t
got it [documentation]!30
Des: What do you call too late? . . . There’s no difference between a mur-
der that happened twenty years ago and that which happened twenty
minutes ago, it’s still a murder. It’s still a crime. It doesn’t matter how
long ago it was, they can still charge them and that’s what I fail to
understand you know. The system as such is protecting these people,
not exposing them, and I fail to understand why.31
Faced with demands for acceptable evidence, and legal technicalities, these victims
lose their right to be publicly designated as victims. There is no suitable, timely
evidence, so there is no provable violation, consequently there is no offender and
there is no victim. Greg32 explained his experience: ‘It’s up against a brick wall and
doors shut in your face and carpets lifted up and you shunted under it you know.’
The centrality of structural relations and capabilities

State administrative techniques of silencing are also dovetailed with structural
relations of power that further inhibit victims’ opportunities to be recognized as
victims. It is known that victimization is structured by age, class, gender, ethnicity

and so on (Green, 2007; Walklate, 2009) and, in the same way, the recognition of
that victimization is also structurally led. Who is listened to, and who has the capac-
ity to put themselves forward, is contextualized by structural relations of power
linked to economy, gender and ‘race’, among others. Certain groups – women,
children, young people, those with mental or intellectual disabilities, those in pov-
erty, indigenous people, minorities – are made vulnerable in this regard. As groups,
they tend to have fewer resources, limited education and less access to justice insti-
tutions (Farmer, 2003; Hudson, 2003; Stanley, 2009; Young, 1990). Those most
likely to suffer state crimes are also those who are not well positioned to make
claims for their victimization. With limited social power, as well as official rhetoric
that scapegoats or stereotypes them, these groups find it difficult to gain traction for
their claims (Kauzlarich et al., 2001).
For example, if pursuing a claim, such groups are more likely to need state assist-
ance to bring the state to account. Many claimants in this study have struggled to
get and retain legal aid for their claims. Following a judicial decision that prioritized
the Limitations Act (and thereby argued that claimants were too late in their quest
for justice), the Legal Services Agency in NZ declared that no claims would subse-
quently be successful, and so withdrew all legal aid in 2008. After significant legal
action, which continues at the time of writing, some claimants had their funding
re-established; however, funding constraints still remain for others (Cooper and
Ross, 2012). The administration and costs of legal cases have, then, been prioritized
over the examination of claims. Such experiences highlight the real vulnerability of
those who are economically disadvantaged in trying to progress claims of state harm
and violence, and the ways in which state agencies can withdraw legal protections
for those who need it most. State institutions and policies can even be structured in
such a way that there are just no routes for redress, mediation or prosecutions.
It is also apparent that structural relations have stopped some people from coming
forward or narrowed their testimonies. For example, it is clear that gender relations
have played a significant part in how, or if, people are designated as victims. This
became evident in attempts to locate and interview women for this research. This was
a challenging endeavour, as women have just not come forward to make claims.33
Nanette: I think that it’s just harder for women . . . they’re just not so asser-
tive or they don’t want to. It’s harder stigma for women, I think,
than it is for men to have been put through the system. Like I
find it really embarrassing, no one’s going to know but people
close to me that I’ve been put through a Girl’s Home. It’s so
embarrassing. I mean I suppose with me I’m a bit lucky because I
know my records will show I never did anything really criminally
wrong except wag school. I have no shame because I know that
I shouldn’t have been there. And, I suppose . . . females might
feel worse about coming forward or maybe they don’t want their
families to know.34
Susanne: I’ll tell you something it’s hard enough with reliving it, I find it
really difficult. And, it’s like my family, they don’t know about it
you see. My son . . . he’s back here for a few days but I had to basi-
cally kick him out [for the interview] because I didn’t want him
to know. You’ve got to hide everything. It’s unresolved . . . this is
why women won’t do it [make a claim] . . . you don’t tell every-
body everything you know. You don’t bring your baggage of the
past with you. I mean I can be reasonably up front about things
but like with our son I haven’t, he doesn’t need to know.35
At the same time, men also experienced difficulties in coming forward and in
‘owning up’ to victimization. Many men have been unable to get support for what
has happened to them, and many have conveyed their struggles in talking about
certain violations, particularly sexual victimization. For instance, in relation to a
question about how his peers have responded to him and his past abuse, Kevin36
said ‘Well, they go “Harden up, can you pick your nuts up, have you found them
yet?” So, you know, you really don’t talk to people about it.’
Similarly, John37 talked about the real struggle in talking about past abuse, even
to people whom he ‘thought the world of’:
I mean, it’s very hard to admit to someone, especially in a relationship . . . to

turn around and admit to them that you’ve been sexually abused, you know
that someone’s physically raped you, you know, as a male . . . I think it’s a lot
harder for me as a male than it is for a female.
Finally, here, victims can struggle to ‘open up’ about their victimization when
they reside in threatening environments. A number of claimants put their legal cases
together in prison and, for all who did so, this was experienced as a stressful time.
After all, drafting a statement requires victims to return their thinking to times in
which they were deeply vulnerable and suffered harm or abuse. The ‘face’ required
to ‘open up’ on these issues directly challenges the ‘face’ necessary to survive prison
life – that of being staunch, non-emotional and hard (Jewkes, 2008; Medlicott, 2001).
Writing their statements required claimants to emotionally expose themselves within
an environment in which such exposure could lead to challenge or even attack.
Grant: I wrote about it. Man, that was . . . a real lonely sort of period . . .
I withdrew right back into myself then. I committed to it, bringing
it all out, writing, hidden you know, I was so scared that somebody
would . . . find the stuff in my room when I went to the showers and
things like that so I carried them [his papers] with me. I’d got it all
written down and I’d take them even to meals and things like that,
interviews. Sometimes they’d come across it in the rubbing down
and I’d just say that they were legal documents . . . even at night I
used to be so sensitive to it . . . shit, all sorts of scenarios were going
through my head . . . So I finally was able to get it out in a sealed

envelope . . . I’ve settled a lot more now. It was really a quite upset-
ting period that.38
In many ways, such experiences mirror the difficulties that children faced in ‘tell-
ing’ about their abuse in the Homes. For so many children, ‘hardening up’ and
‘toughing it out’ was the normalized institutional identity; to ‘tell’ was made almost
impossible in the institutional context; and victims often feared the reaction from
state officials. Such responses indicate that any understanding of who comes for-
ward as a victim, and how they act in the process, has to be considered in terms
of their structural location, institutional opportunities, as well as social relations of
power (Walklate, 2007).
The limits to legally digestible facts

In responding to state crimes, it is also necessary to move beyond analyses that offend-
ing is individualized, to a more nuanced account that considers the role of institutional
practices as well as structural relations of power in violence and harm (Stanley, 2007,
2009). After all, in the Homes, specific violations (such as beatings or sexual assault)
were intensely damaging but they were just one element of the harms experienced
by children. Alongside the horrors of particular acts, claimants have talked movingly
about, among other things, the stress of being continually belittled by adults around
them, their frustration of not receiving a ‘proper’ education, their struggle to gain
friends outside the Homes because they were labelled a ‘care-kid’, their despair in not
having unconditional love, their constant worry about being moved to yet another
place, their loss of autonomy, their continued feelings of insecurity or their fears that
they might not see their family again. On release, many claimants have talked about
the problems of being released with no support in place, their frustrations in not
knowing how to feel or act in ‘normal’ company, their attempts to sabotage relation-
ships because they fear further loss, their struggles to find satisfying work or their
frustration at how life is impeded by poor health. These experiences, many of them
highlighting the mundane realities of state crime, have a long legacy.
Yet, even when the state (through the Ministry of Social Development) has
acknowledged victimization, it has tended to focus on individual acts of physical
or sexual violence, often involving individual staff members or children. In short,
the state has fixed on legally digestible incidents that can be measured and isolated.
Whether these particular events happened or not is the basis upon which victimiza-
tion is judged. Hence, the state takes a significant role in delineating not just who
is seen to be a victim, but also the nature and boundaries of the harms against them
(Walklate, 2007). In taking this approach, state officials allow just a narrow glimpse
of the trauma experienced in the Homes. This legal boundary-setting obscures
those everyday violations and humiliations within the Homes, as well as the lost
opportunities and on-going harms that have cemented a legacy of disadvantage for
these claimants.
Maui: They admitted to sexual abuse . . . but there were a lot of other things
they didn’t take into consideration.39
Peter: I mean the impact [of the legal statement] is nowhere near the effect
that it had on us. You can’t get the impact of years and years of abuse,
isolation, solitary confinement, stigmatism, degradation, self-loathing,
you know, everything. You can’t get that, that doesn’t translate.40
Claimants’ views of their own victimization go far beyond the narrow construc-
tions permitted by these official processes. Further, the end result of these processes
is not just that individual victims do not receive the recognition they deserve, but
that state harms can be more readily designated as something from the past. That
is, in narrowing the discussion of victimization, any acts that are accepted by the
state as violations are redrawn as ‘historical’ and ‘individual’ crimes, which obscure
the long-term realities of victimization. Designated to the ‘past’, this victimization
is interpretively denied as ‘old news’ about events that ‘could not happen today’
(Cohen, 2001). This approach distances social and political attention from the social
and emotional disadvantages currently faced by children in care (Atwool, 2010;
Browne, 2009; HM Inspectorate of Probation et al., 2012). The continuum of
abuse and harm goes unchallenged and, with limited media or social consciousness
of the issue, these ‘facts’ of state-led victimization are silently silenced (Mathiesen,
2004). In this respect, even when the state has recognized victimization, it has
done so in ways that protect its own interests, of self-maintenance and legitimacy
(Walklate, 2007). Given these processes, it is perhaps more fruitful to reflect upon
victimization in terms of a ‘social harm’ approach that goes beyond law, to consider
‘criminal’ and ‘non-criminal’ harms as well as harms that result from ‘both intention
and indifference’ (Pemberton, 2007: 38; Hillyard et al., 2004).
The costs and benefits of coming forward as a victim

So far, it is clear that whether, or how, individuals ‘embrace a victim identity’
(Walklate 2007: 55) is differentially patterned. How harm is experienced, victims’
coping mechanisms, and what they are prepared to tell are all variable (ibid.). In
this case-example, victims’ capacity to ‘tell’ and to be acknowledged is inhibited
by the legacy of their experiences in state care; this group is positioned to be less
able to make acceptable claims. These issues are intensified following state-led
violence, as to seek recognition of such victimization is also to challenge the legiti-
macy of state institutions. It is apparent, too, that victims view that institutional
responses have overtly relied on the management of law and ideological represen-
tations to devalue claimants and to deny or limit claims. These strategies, as well as
the process of coming to terms with victimization, have brought significant costs
for victims.
Respondents to this research have highlighted many costs of seeking recogni-
tion, such as they struggle to make claims in circumstances where they want to hide
their past because of feelings of shame or fear of how others will regard them.
Raewyn: People do look at you. When you tell people you’ve been a ward
of the state you watch their whole attitude do a 360 you know
and it’s really noticeable . . . I don’t tell many people now unless I
have to . . . I wouldn’t freely give that information to many people
nowadays.41
Many have spoken about the real difficulties of opening up, to solicitors, counsel-
lors and to the author; they have not appreciated the way in which their claim
opens their lives up to further state interrogation and inspection; they are ambiva-
lent about being identified as an opponent of the state; and they worry about being
unsuccessful and being rejected as a victim once more. Many continue to feel angry
and hurt about their past.
David: there’s still a lot of hurt, there’s still a lot of pain, there’s still a lot of
resentment, a lot of guilt you know, a lot of shame . . . it chips away
at my humanity.42
It is also apparent to victims that even if they are recognized as victims, the result
will not necessarily result in progressive outcomes. They understand the fact that,
as Walklate (2007: 49) puts it, ‘the state is not an objective, neutral arbiter of the
“facts”, but a self-interested and self-motivated mechanism in which its interests,
at different historical moments, may be more or less paramount, dependent upon
economic circumstances’. Whether, and how, victims will be recognized is largely
dependent upon state interests. Still, these risks must be faced because, as numerous
victims identified, the alternative of not dealing with it is worse. As Keith says, ‘It’s
a very hard thing to articulate at times. It just robs you of your dignity and it’s, it’s
so soul destroying and it stays with you. If you don’t deal with it it just stays with
you and it rots your soul, it rots your very self. It’s corrosive.’43
Moreover, victims acknowledge that being designated as a victim may also bring
opportunities. For some, the process of coming forward has been valuable, even if
their legal case has not been successful.
Grant: I didn’t realize how deep it was going to go . . . But I think I did the
right thing . . . I’ve finally been able to deal with it, or I’m trying to
deal with it anyway.44
Greg: I’ll go to my grave stating what he did . . . I don’t care what he said.
I don’t care if he’s long serving . . . he’s an animal and he did that to
me and I’ll never ever forget it . . . I don’t dwell on it as much now.
I think I’ve got a bit of satisfaction back from battling away for the
last twelve years with them.45
Some people have found a new resiliency, being able to better cope with life
and to positively adapt to their circumstances and experiences (Dutton and Greene,
2010). In speaking out about the past, they have found an inner strength and
(re)affirmed family, social or community supports.
Des: And you know the fact that I’ve come forward and said something
and it’s saying ‘well, hey, I’m strong enough to say this happened’. I
don’t need to hide it any more. That’s the difference.46
Ged: I try not to get too bitter about it because it buggers you up so you’ve
got to sit down on an even keel you know. And, I’ve got a good
partner and my friend as well, you know, she helps me and my kids
understand and keep me on track.47
This is a dynamic process of survival (Walklate, 2011) in which victims have,

over time, managed their trauma. For some victims, the process of seeking official
recognition – even if unsuccessful thus far – has provided them with an opportu-
nity to reaffirm their own resistance to state acts of harm and violence (Stanley and
McCulloch, 2013).
Conclusion
This chapter has highlighted the ways in which ideological, social and institutional
processes, as well as structural relations of power, play a generative role in who is
recognized as a victim of state crime. These claimants have faced numerous obsta-
cles in being recognized as victims. At a personal level, victims can be deeply reti-
cent to be labelled as an ex-resident of Social Welfare Homes. Institutionalization,
and the dominant characterization of children in the Homes as trouble, continues
to be regarded as shameful, particularly for women. Without a clear acknowledge-
ment by the state that children were in need of care, numerous victims distance
themselves from their past and engage in self-censorship as a means of protection.
Beyond this, who comes forward, and what they say, is linked to multiple issues
of status, ability and power in which many victims do not have capabilities, or the
personal security, required to tell their full story. It seems that those made most
vulnerable within society are those who are most likely to suffer state crimes and
also those most likely to struggle to receive protection or accountability.
Victims of state violence can therefore be placed outside the boundaries of
attention and recognition. The law has played a key role in these limits of victim
recognition. Government responses have relied on weak records in the Homes and
legal technicalities to quell claims. For those victims that have had claims accepted,
agencies have ensured that the boundaries of debate are narrowed, such that viola-
tions are depicted as rare, historic events. With such a focused response, the recog-
nition of state violence and harms can be distanced from current (legitimate) state
activities and state processes go undisrupted.
These activities of self-acknowledgement of victimization, and official responses
to claims, have had a profound impact upon claimants. They have required victims
to ‘dig deep’ in facing their past, and to anticipate the risks of denigration and/or
rejection. Yet, these victims of state violence – like so many before them – have
found solace in their resilience, their familial and social supports as well as their
survival techniques. In this respect, their lives demonstrate how state crime victimi-
zation is deeply entwined with personal and social strategies of resistance (Stanley
and McCulloch, 2013) through which dominant representations of state crime, its
victims and its offenders, are contested and reworked.
Notes
1 As one example: over the last 30–40 years, a whole new range of offending around sex-
ual violence has opened up to official attention. Yet, within criminal justice, dominant
myths remain about who is victimized, who are the perpetrators, how victims should
respond, how victims make false claims and so on (see Jordan, 2004). Faced with state
and societal reticence to accept this offending, and a justice system that regularly shames
and humiliates victims, few victims report to police and a limited number of perpetrators
face conviction or punishment (Lovett and Kelly, 2009; Triggs et al., 2009).
2 This study focuses on those who were held in regional or national Girls’ and Boys’
Homes governed by the NZ Department of Social Welfare. During this period, children
also experienced other forms of care, including Family Homes (smaller Homes that were
usually run by designated ‘parents’ under direction from government agencies) as well as
foster care.
3 See White v. Attorney-General (CIV 1999-485-85, High Court Wellington, 28 Novem-
ber 2007, Miller J).
4 Whānau is a Māori term, commonly used in NZ, that refers to extended family.
5 Some interviewees requested that their names be changed for this study. Thus, this chap-
ter contains pseudonyms as well as real names.
6 In interview, Wellington, 18 February 2011.
7 In interview, Auckland, 3 November 2011.
8 In interview, Whanganui, 5 March 2010.
10 In interview, Taupo region, 29 March 2011.
11 In interview, Christchurch, 10 February 2010.
12 In interview, Auckland, 18 January 2011.
13 There are a number of routes available to these claimants for official recognition. These
include: (1) mediation with the Historic Claims Unit within the Ministry of Social
Development (MSD); (2) pursuing legal claims against the MSD; (3) participation in
the Confidential Listening and Support Service; and (4) individual legal cases against
individual offenders, as a result of taking complaints to the NZ Police.
16 In interview, Wellington, 31 January 2011.
17 In interview, Upper Hutt, 12 January 2011.
18 In interview, Blenheim, 8 March 2011.
19 In interview, Napier, 16 March 2011.
20 In interview, Taupo region, 16 February 2010.
21 Over recent decades, NZ has taken a strong punitive approach to offenders, driven by
populist political and media rhetoric as well as changes to socio-economic structures
(Pratt, 2006). ‘Law and order’ politics has led to the continued growth of imprisonment
as well as the erosion of prisoners’ rights. For instance, in 2005, NZ implemented the
Prisoners’ and Victims’ Claims Act. This Act restricts access to compensation for prison-
ers who have been subject to human rights breaches, so that compensation is reserved
for exceptional cases. If compensation is awarded, the Act requires it to be paid to the
Secretary for Justice, and subject to the deduction of legal aid, reparation and victims’
claims. Within this approach, of course, is a distancing from the fact that offenders and
prisoners can also be victims.
22 In interview, Auckland, 22 March 2011.
23 In interview, Wellington, 8 September 2011.
24 In interview, Auckland, 27 September 2011.

25 In interview, Auckland, 22 February 2010.
26 In interview, Christchurch, 10 February 2010.
27 In interview, Dunedin, 17 October 2011.
29 See White v. Attorney-General (CIV 1999-485-85 and 2001-485-864, High Court Wel-
lington, 28 November 2007, Miller J) and W and W v. Attorney General [2010] NZCA
139. In these decisions, the Courts detailed that the plaintiffs had suffered serious harms.
However, they upheld limitations and, in doing so, refused to recognize that victimi-
zation by state agencies, or victimization during childhood, have different long-term
impacts from other types of victimization. In this context – where the abusive institu-
tion is cast as the ‘protector’ and only source of support, and where young victims do
not have the capacity to make claims – it is not surprising that people will not come
forward to make claims until they feel safe or sense that they will not be turned away (for
instance, where they sense a community of others who are willing to believe them).
30 In interview, Whakatane, 1 March 2011.
33 This is despite the fact that Girls’ Homes have also been linked to numerous abusive
practices and events, including the forced gynaecological examination of female children
for sexually transmitted diseases on arrival to the Homes (ACORD, 1978).
34 In interview, Auckland, 22 March 2011.
36 In interview, Hamilton region, 8 February 2011.
37 In interview, Upper Hutt, 12 January 2011.
40 In interview, Christchurch, 25 January 2011.
43 In interview, Wellington, 8 September 2011.
47 In interview, Whakatane, 1 March 2011.
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5
SOMALI PIRATES
Victims or perpetrators or both?
Introduction
There has been a resurgence of international political and media interest on the
issue of maritime piracy1 since the early 1990s (Chalk 2008; Hong and Ng 2010;
Rothe and Collins 2011), specifically in the Gulf of Aden (Bahadur 2011; Eichs-
taedt 2010). This is especially so considering that nowhere in the world is the rise
in piracy attacks more evident than in the coastal waters of Somalia (International
Maritime Bureau 2010). For example, of the 439 piracy attacks reported to the
International Maritime Bureau in 2011, 275 were credited to Somali pirates (Inter-
national Maritime Bureau 2011). Further reports indicate the violence used during
the commission of the attacks has considerably increased (Elliott 2007), leading to
Somali waters having been described in the media as “amongst the most danger-
ous waters in the world for shipping” (Mayoyo 1999). This global media cover-
age has brought piracy, an issue historically associated with legend and folklore
(Chambliss 2004), into the present day and has led to increased policy responses by
varying states and international actors such as the North Atlantic Treaty Organiza-
tion (NATO), the European Union (EU), and the United Nations (UN). These
responses include an increase in the presence of warships in the shipping lanes
that border Somalia’s coastal waters, as the UN has given member states unprec-
edented legal authority to pursue and combat pirates, encouraging them “to take
part actively in fighting piracy” (United Nations Security Council 2008b: 3). There
are now warships from as many as 30–40 different countries floating in the Gulf
of Aden and in and around the coastal waters of Somalia (van Ginkel and Land-
man 2012) to protect international “peace and security” (United Nations Security
Council 2008a, 2008b, 2008c, 2008d, 2008e, 2008f) and curtail the threat posed by
Somali pirates. Contrary to other literature addressing Somali piracy as a threat to
international peace and security (Chalk 2008; Engels 2007; Gibson 2009; Hawkes
Somali pirates: victims or perpetrators or both? 67
2001), and therefore supporting the militarized response to the problem, the focus
of this chapter is the presentation of the Somali pirate as both perpetrator and vic-
tim. While acknowledging the weakened state infrastructure and the humanitarian
situation that has plagued the Somali people for over 20 years (Eichstaedt 2010;
Hastings 2009; Rothe and Collins 2011), I situate the motivations for Somali piracy
within a structural victimization that extends beyond the economic conditions
within Somalia, to include a re-victimization of those caught perpetrating piracy
as the anti-piracy policies are enforced. This creates a duality where the pirates of
Somalia are both victim and perpetrator.
A review of the literature

There is an extensive body of literature that calls attention to the political nature of
law making (Becker 1963; Hagan 2010; Barak, Leighton and Flavin 2010; Cham-
bliss 1989; Chambliss and Seidman 1971; Sutherland 1940), as well as the harms
that result from the adverse effects of laws and justice mechanisms (such as crimi-
nal justice policy) implemented by states to address behaviors identified as being
criminal (Beckett 1997; Blomberg and Lucken 2000; Gottschalk 2011; Parenti
2008; Pattillo, Weiman and Western 2004). Where prior research has focused on
the role of national politics (Becker 1963; Chambliss 1989; Clement and Barbrey
2008; Hughes and Lawson 2011; Lemert 1967; Parnaby 2006; Reno 2009), here I
go beyond the domestic politics of state law-making and present the same processes
at the international level as it relates to piracy in Somalia, examining the adverse
consequences that have resulted (i.e. the secondary victimization of those engaged
in piracy). As is the case at the state level, this centers on examining the process
by which attention is drawn to the means by which states and politicians define
certain behaviors as dangerous, that then creates a discourse framing the acts as a
threat to society’s social order, justifying policies and laws that are then initiated,
enacted, and enforced to prevent and punish these behaviors (Alexander 2010;
Becker 1963; Beckett 1994; Bobo and Thompson 2006; Bonn 2010; Findlay 2007;
Hogg 2007; Parenti 2008; Young 1971). The literatures on law-making processes
and the consequences of policies initiated as mechanisms of control are extensive,
and therefore reach beyond the scope of this chapter, but to serve as an example,
consider one of the most prominent examples in the criminological literature, that
of the war on drugs (Bennett, DiIulio and Walters 1996; King and Mauer 2005;
Wisotsky 1990).
There are numerous studies that have deconstructed the socio-political and eco-
nomic justifications and realities that underpin the policies initiated to fight the
war on drugs (Bennett et al. 1996; Bobo and Thompson 2006; King and Mauer
2005; Wisotsky 1990). Policies such as mandatory minimum sentencing practices,
three-strike laws, as well as truth in sentencing, have led to an increase in the prison
population in both the UK and the US (Crutchfield 2004; Jones and Newburn
2005; Jones and Newburn 2006; Piehl 2004). Justification for policies criminal-
izing drug use, such as crack cocaine, were established through the dissemination
68 Victoria Ellen Collins
of a conservative political rhetoric that emphasized the threatening and dangerous

nature of the drugs and the individuals that used them (Irwin 1995; Logan 1999).
Media reports asserted that “crack cocaine was more potent, more addictive, and
more likely to lead its users to acts of violence, crime, and desperation” (Logan
1999: 117). The danger of drugs and drug use became the dominant discourse
surrounding the issue, resulting in increased fear and providing the justification for
passing legislation aimed at tackling the “drug problem.”
Despite this discourse on drug use in the 1980s, evidence suggests that during this
time period the reality was that drug use had in fact declined (Beckett 1994; Jensen,
Gerber and Babcock 1991; Reinarman and Levine 1989). Not only was drug use
on the decline, but public consciousness and concern about the issue increased
only after the Reagan administration’s 1982 declaration of “war on drugs” (Beckett
1997). The focus of studies examining the discourse surrounding the enactment of
drug policies has not been the drug use itself, but the underlying purpose that these
policies serve, specifically, whose interest they advance (Alexander 2010; Parenti
2008). Many arguments have been advanced in response to this question, including
securing presidential election success (Hagan 2010; Parenti 2008) and distracting
attention from social and civil unrest by refocusing national attention on a common
threat (Barak et al. 2006), but one of the most dominant arguments suggests the
purpose is the demonization of specific minority groups (Alexander 2010; Lynch
and Sabol 2004; Parenti 2008).
Historically, research has shown that criminal justice control mechanisms have
had direct and indirect adverse effects on particular groups and people. For exam-
ple, minority populations have been unfairly targeted by police because of racial
profiling (Alpert, Dunham and Smith 2007; Brunson 2007; Harris 2007; Skolnick
2007) and have suffered disparities in sentencing practices (Golub, Johnson and
Dunlap 2007; Mauer and King 2007), leading to a disproportionate number of
minority males being incarcerated (Alexander 2010; Glaze 2010). Minority groups,
predominantly African American males, have continued to suffer from differen-
tial treatment, to be afforded lesser protections, and have repeatedly experienced
the adverse effects of criminal justice policies (Hartney and Vuong 2009). These
adverse effects then, ironically, push individuals towards behaviors that these same
policies have been enacted to prevent.
These same processes of law-making exist at the international level, and there
is considerable literature examining the perpetrators of harm (i.e. genocide, crimes
against humanity, war crimes, torture, etc.) as well as the political nature of the
mechanisms of international social control and justice that have been implemented
to control them (Iadicola 2008; Iadicola 2010; Iadicola 2011; Ross and Rothe
2008; Rothe and Mullins 2006; Rothe, Muzzatti and Mullins 2006). However, as
recently indicated by Rothe and Collins (2013), little attention has been paid to the
adverse impacts of the social control policies put in place at the international level.
This is especially true when these policies involve many different mechanisms of
control, are facilitated and initiated by many different actors with varying inter-
ests, and are situated within the wider context of global politics and international
economic relations. This is especially relevant to the issue of maritime piracy, con-
sidering that the policy responses that have been created and enacted to counter
piracy in the Gulf of Aden, not only ignore the etiological factors that motivate
perpetrations of piracy, such as the structural conditions within the country itself,
but also further victimize those apprehended for acts of piracy. This is especially so
as the implementation of these anti-piracy policies serves the interests of corporate
profit-making, and ignores the voice of the Somali people. The following analysis
will show that, much like the process of law-making at the state level, the policy
response to the Somali pirate further victimizes an already vulnerable population,
giving the Somali pirate the dual status of both victim and perpetrator. The follow-
ing analysis will first present the problem of piracy in Somalia before examining the
adverse consequences of the policies that have been initiated to control the issue.
The “problem” of piracy in Somalia

Reports from the International Maritime Bureau (IMB),2 a non-profit actor rep-
resenting the interests of the private shipping industry (International Maritime
Bureau 2005), indicate that pirate attacks off the coast of Somalia began to rapidly
increase in the early 2000s. Table 5.1 shows that the number of attacks prior to
2005 averaged at about 10 per year, before increasing to 45 attacks in 2005. There
TABLE 5.1 Number of piracy attacks as reported by the International Maritime Bureau
1991–2012
Year Number of attacks
1992 1
1993 1
1994 1
1995 14
1996 4
1997 4
1998 9
1999 14
2000 13
2001 19
2002 17
2003 20
2004 11
2005 45
2006 20
2007 44
2008 111
2009 196
2010 216
2011 237
2012 233
was a dramatic increase in attacks in 2008, with 111 being credited to the Somali
pirate. This number then steadily increased from 2008 to 2011, when there were
237 attacks for that year, and preliminary reports from the IMB in 2012 indicate
there were 233 attacks in the first three months of the year.3 The statistics suggest
that piracy has increasingly become a problem in Somalia coastal waters.
Although there has been a spike in pirate attacks in the Gulf of Aden, the level of
violence committed against the crews remains low. For example, the level of vio-
lence perpetrated against crews averages 1.1 deaths per year, and does not exceed
four in any given year until 2011, when it increases to eight. Likewise, the number
of crew who sustained injuries also remains relatively low, averaging 1.7 people
sustaining injuries per year until 2010, before it increases in 2011, reaching its
highest with 32 people sustaining injuries (International Maritime Bureau 2011).
By examining the number of deaths and injuries as a percentage of the number of
attacks for each year, as indicated in Table 5.2, it becomes evident that the number
of attacks by the Somali pirates that resulted in violence is extremely low.
Consider that when the number of attacks dramatically increased in 2008 only
1.8 percent of those attacks resulted in a crew member being injured and 3.6 per-
cent ended in a crew member being killed. In 2011, when the number of attacks is
at its highest, only 1.37 percent of those attacks resulted in a crew member being
injured and 3.38 percent resulted in a death.
TABLE 5.2 Number of crew injured and killed as a percentage of total attacks in Somalia
Year No. of No. of crew No. of crew injured No. of No. of crew killed
attacks injured as percent of attacks crew killed as percent of attacks
1992 1 0 0 0 0
1993 1 0 0 0 0
1994 1 0 0 0 0
1995 14 0 0 0 0
1996 4 0 0 0 0
1997 4 0 0 1 25
1998 9 3 33.33 1 11.11
1999 14 0 0 1 7.14
2000 22 1 4.55 0 0
2001 19 0 0 0 0
2002 17 0 0 0 0
2003 21 1 4.76 0 0
2004 10 0 0 0 0
2005 45 1 2.22 0 0
2006 20 1 5 1 5
2007 44 6 13.64 2 4.55
2008 111 2 1.8 4 3.60
2009 196 10 5.1 4 2.04
2010 216 10 4.63 0 0
2011 237 3 1.37 8 3.38
Although any violence or death perpetrated by one person against another should
not be marginalized, the level of violence committed by the Somali pirate compared
to other regions of the world known for pirate attacks is relatively minimal. For exam-
ple, the numbers of deaths attributed to pirates from other regions are consistently
greater than those attributed to attacks in Somalia. Consider, in 2006 there were six
deaths attributed to pirates in the Philippines, three in the South China Sea and one
attributed to Somali pirates (International Maritime Bureau 2006). Similarly, in 2008
there were seven deaths attributed to pirates in the Philippines and four to those in
Somalia (International Maritime Bureau 2008). Further, there are other areas of the
world where the rate of injuries perpetrated by pirates against crew is consistently
higher than in Somalia. One such area is Nigeria where, in 2007, 15 crew were
injured (International Maritime Bureau 2007), in 2008 there were 44 (International
Maritime Bureau 2008), and in 2011, 32 (International Maritime Bureau 2011).
These numbers far exceed the numbers attributed to the Somali pirate.
The relatively low level of violence is further illustrated when the numbers of
deaths caused by Somali pirates are compared with the numbers of mariner deaths
in different countries and around the world. In 2005, statistics from the Interna-
tional Maritime Organization from seven4 different countries indicate that there
were 55,585 casualties at sea attributed to accidents and complications of which 60
were confirmed mariner deaths (International Maritime Organization 2011). Fur-
thermore, the number of fatalities that occurred in 2010 on commercial vessels in
US waters alone totaled 43 (Chambers 2010). The relatively low rate of injury and
death in the Gulf of Aden can be explained by the modus operandi of the Somali
pirate. Pirates operating in the region of Somalia most commonly kidnap the crew
for the purpose of ransom, as opposed to piracy in other regions where seizures of
the ships or the cargo for the purposes of making sales for profit are the primary
motivation (Hastings 2009).
This relatively low threat of violence, however, is not reflected in the anti-
piracy response, which can be better characterized as an overly militarized response,
as it not only involves warships from as many as 30 different countries, but also a
vast network of over 50 different corporate, state, regional and international actors
(Apps 2010). This militarized response to the Somali pirate, however, is not so
much about the actual threat of the Somali pirate, but instead it has been initiated
in reaction to the portrayal of perpetrators of piracy as terrorists and organized
criminals who are said to pose a threat to international peace and security (Collins
2012; Rothe and Collins 2011; Young and Valencia 2003). Somali pirates, through
their labeling as terrorists, have been identified and assessed as posing a significant
risk, first by the organizations with interests in commercial shipping, then by states
who have vested political and economic interests (e.g. the US, following the 9/11
attacks on New York, launching the “war of terror”) (Collins 2012; Rothe and
Collins 2011; Young and Valencia 2003). However, the chance of a maritime
attack actually happening is relatively low.
According to data collected from the RAND terrorism database, only 2 percent
of terrorist attacks occurring over the last 30 years have been perpetrated against
maritime targets, none of which can be attributed to Somali pirates (Chalk 2008).
As indicated by Møller (2009: 23) “maritime terrorism has so far been a very minor
problem.” This blurring of terrorism with piracy culminated in the international
political community5 reasserting that piracy poses a threat to international peace and
security and subsequently initiating policies authorizing member states “to take part
actively in fighting piracy,” and to employ “all necessary means” to fight piracy in
Somalia (United Nations Security Council 2008e: 3). These policies are designed
to decrease opportunities for piracy through the initiation of situational deterrence
– the deployment of warships to patrol international shipping lanes – that calls for
individual accountability and militarized tactics. This has resulted in the deployment
of military forces from as many as 14 different countries to the Gulf of Aden to
combat the “threat” of the Somali pirate (Collins 2012; Ha 2009; Rothe and Collins
2011). In this action, however, the structural conditions within Somalia that moti-
vate individuals to perpetrate acts of piracy have been, and continue to be, ignored.
The truth about the motivations for piracy in Somalia

Since the bloodless coup that ousted Siad Barre in 1991, the country of Somalia has
experienced continued political unrest, conflict, corruption, and a lack of central
government, all of which has created poor conditions within the country that have
greatly impacted the Somali people. For example, as a result of prolonged fighting,
many Somalis have been displaced from their homes and denied access to basic
resources such as food, water, and sanitation. The infrastructure within the country
is weak, with high rates of poverty and unemployment, as well as little access to
education. Recently, these conditions were compounded by a drought and famine
that plagued the country in 2011, resulting in the displacement of approximately
1.5 million Somalis from their homes. This population is especially vulnerable and
is at high risk for disease, which has been further exacerbated by the fact that
80 percent of the Somali population does not have access to safe drinking water
(Internal Displacement Monitoring Centre 2011). Therefore, conditions within
the country, and the desperation of the Somali people to obtain what is necessary
to meet their basic needs and to buffer against poverty, appear to be connected to
the issue of piracy for ransom – what has been determined to be an economic crime
(Ha 2009; Rothe and Collins 2011).
As noted by scholars of organized crime (Clinard and Yeager 1980; Green and
Ward 2009; Hashim 2006), economically driven crimes have benefits that extend
beyond the individual to groups and even to communities. In the case of Somalia,
it is unlikely that ransoms from piracy are fueling international terrorist groups;
rather, it is more plausible that the funds from piracy are distributed to surround-
ing communities in Somalia (United Nations Office on Drugs and Crime 2010:
1), providing the means to guard against the poor conditions and fueling the drive
towards further criminality. As indicated by Andrew Mwangura, the head of the
East African Seafarers’ Assistance Program, “We say the root cause of Somalia
piracy is poverty” (Eichstaedt 2010: 116). This is supported by the fact that the
initial increase in piracy attacks was focused in part on ships that contained food
supplies (World Food Programme 2007).
The economic motivations for piracy are also connected to other, alternate
motivations for piracy in the region, such as illegal fishing and toxic waste dump-
ing, as, after all, the majority of Somali pirates are either ex-militia fighters or local
fishermen (Parry 2008). For example, unlicensed foreign ships trawl Somali waters
for fish, threatening the only source of livelihood available to many Somalis, that of
fishing (Jasparro 2009; Eichstaedt 2010). This is indicated in a quote from Garaad
Mohammed, a pirate interviewed in Somalia about the motivations of his actions:
“Illegal fishing ships, they are the real pirates . . . I was one of the first to start fight-
ing against the illegal fishing” (Bahadur 2011: 81). Additionally, motivations for
piracy are compounded by toxic dumping in Somali waters, as many international
companies dump hazardous waste, killing the rich marine life in that country’s
coastal waters (Eichstaedt 2010).
The pirates’ motivations extend beyond the opportunistic motivations for
piracy and provide political motivations, separate and distinct from the ideological
motivations of terrorism, in what Green and Ward (2009: 1) would term a “dual
purpose” crime: politically and economically motivated. Intensifying the political
motivations for piracy is that, “of the countries that contributed naval vessels to the
anti-piracy operation, half are nations engaged in fishing in the Indian Ocean with
a vested interest in deterring piracy” (Jasparro 2009: 1). As surmised by President
Ahmed Hussen of the Canadian Somali Congress in an interview with CBC News
(2009),
When you see the coverage of piracy, in most of the national media, you
don’t hear much about the $300 million annually that’s lost by Somali fisher-
man in illegal fishing done by foreign interests. You also never hear about
the cost that cannot be estimated, the negative costs of toxic waste . . . What
is hard to comprehend is why the outside world [is] turning a blind eye to
foreigners fishing illegally in Somali waters and poisoning them with toxic
waste . . . And as can be expected, the starving people who’ve been robbed
have retaliated with some countering of their own. The attacks on foreign
ships, Somalis say, started as a reaction to foreign pillages trying to put their
fishermen out of business.
This is also reflected by the establishment of a Volunteer Coastguard of Somalia.

This was formed by local fishermen to patrol Somali waters using speedboats to
try to dissuade the dumpers and trawlers, or at least levy a “tax” on them (Hari
2009). Therefore, the illegal dumping and fishing in Somali waters can be viewed
as a “‘resource swap’ with Somalis taking $100 million annually in ransoms while
Europeans and Asians poach $300 million in fish” (Jasparro 2009: 2).
The conditions within the country, coupled with the depletion of Somalia’s
fisheries through illegal fishing and toxic waste dumping, create a situation where
Somali pirates can no longer be considered solely as perpetrators of a crime. Instead,
the motivations for acts of piracy transform them from perpetrators to victims of
their structural conditions, illegal fishing and toxic waste dumping, who are then
acting out against their victimization. The current militarized response to the
issue of piracy in Somalia has failed to address these root causes of the problem,
and instead has advanced the interests of West (specifically the US and the “war
on terror”) as the ideologies that are guiding the militarized policies of external
intervention. These policies are embedded in political and economic concerns: in
terms of the global economic market and disruption to foreign domestic corporate
profit-making (Rothe and Collins 2013), and as a result worsen the plight of the
Somali pirate by ignoring the harms that have been perpetrated against the fisher-
men of Somalia, motivating them towards piracy, and also revictimizing those
apprehended for acts of piracy.
The re-victimization of the Somali pirate

There are considerable inconsistencies with regards to the apprehension and treat-
ment of suspected pirates. Many states release suspects whom they have appre-
hended, asserting they have insufficient evidence to launch a prosecution under
their domestic laws (United Nations Security Council 2010), termed “fast-track
arrest-and-release episodes” (Archibugi and Chiarugi 2011: 232). Other reasons
for release include naval forces’ inability to find another state willing to accept the
transfer of the suspect for trial, lack of transfer agreements with regional states, and
the adoption of policies that release the suspects and seize their weapons (United
Nations Security Council 2010). In addition, there have been accounts of some
states taking more extreme measures. Naval forces from Russia and India have been
accused of taking a more violent approach and opening fire on suspected pirates,
killing them as well as the kidnapped crew, before sinking the hijacked trawlers.
For example, having captured the 10 pirates accused of hijacking the oil tanker MV
Moscow, the Russian navy is reported to have released the 10 men “300 miles off
the coast without water, food and any navigation device,” with no means to safely
reach shore (Archibugi and Chiarugi 2011: 232). Therefore, individuals accused of
acts of piracy are vulnerable to the varying forms of “justice” administered by the
different countries that have naval forces patrolling the Gulf of Aden (Archibugi
and Chiarugi 2011; Bahadur 2011; Eichstaedt 2010).
When Somalis are arrested, detained, and transported to another country’s juris-
diction for trial, this does not necessarily mean the accused’s rights are protected,
or that they will receive “justice.” For the purposes of illustration, examples will
be drawn from the trial of five suspected pirates in the US. In this case five Somali
nationals were tried for acts of piracy and various other charges associated with the
commission of acts of piracy (some of which were added during the pre-trial stages
of the hearings), for an attack on a US warship. The US accused these five men
of opening fire on the USS Nicholas, a warship involved in an anti-piracy mission
in the Gulf of Aden and the coastal waters of Somalia (Combined Task Force 67).
Having identified on the ship’s radar three vessels suspected of being involved in
piracy, the warship changed course with the purpose of intercepting them. Three
of the Somalis approached the USS Nicholas in a small vessel, came alongside the
warship and opened fire (fired three shots), the Nicholas returned fire on the vessel
(approximately 40 rounds). The small craft (the pirates’ vessel) then attempted to
flee the warship which then pursued it for approximately 45 minutes before the
engine on the skiff cut out. The US navy personnel then boarded the skiff, taking
the three defendants into custody, handcuffing and blindfolding them before taking
them on board the USS Nicholas, where they were photographed, their clothes cut
off their bodies and they were then medically examined while they were naked.
This all occurred without the ability to communicate, as none of the US personnel
spoke the suspects’ native language of Somali.
Another skiff (later identified and referred to as the mother ship) was tracked by
radar and pursued by the warship. When the warship came up alongside the 30–40
foot vessel, the skiff was boarded and the other two defendants were taken into
custody. During their detention on the ship, one of the Somalis allegedly confessed
via satellite phone to an interpreter to being a pirate and engaging in piratical acts.
Later, when an interpreter was brought to the warship in person, all five defend-
ants denied being engaged in acts of piracy. The trial resulted in the conviction of
all five Somali men for acts of piracy, and they each received life sentences plus an
additional 80 years for the other charges, all of which are to be served in the US
federal prison system (US v Hasan, Ali, Dire, Gurewardher, and Umar 2011).
As this was the first time that individuals had been charged with the crime of
piracy in the US in over 100 years, amendments were made to the charges in the
pre-trial stage of the case. In July 2010, the indictment was amended to include 10
additional charges, all of which were felony offenses. Motions were made by several
of the defense attorneys to dismiss the indictments, as the USS Nicholas had destroyed
the skiff that the defendants were found in and, as a consequence, evidence that sup-
ported the charges was not available for trial. The motion argued that,
At no time did any of the three defendants board or even attempt to board
USS NICHOLAS until they were forcibly brought aboard by crew mem-
bers while restrained in handcuffs and while blindfolded. The fishing boat
was then completely destroyed by gunfire, burned and sunk. USS NICHO-
LAS then continued its mission with the three defendants on board under
restraint. The small boat was then searched at night and was intentionally
destroyed by gunfire, burned and sunk.
(United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011a: 2)
The defense argued that the navy intentionally destroyed evidence that was the basis
for its case, especially as no inventory or video recordings were made of the vessels
before they were blown up. This is indicative of the practices of many different
states operating in the Gulf of Aden, who, after having captured suspected pirates,
blow up their skiffs, burn off the vessels’ fuel, and then dump the boats’ contents
into the water (Eichstaedt 2010; Rice 2008). This would not be an accepted policy
when prosecuting other forms of crime in the US domestic court system, and puts
the defendants at a significant disadvantage in presenting a defense.
In addition, further motions were made to suppress the alleged statements made
by three of the defendants. These motions question the legality of the US navy’s
behavior in this case. For example, one of the defendants, according to the govern-
ment’s case, admitted to being a pirate and engaging in piratical acts. The defendant
allegedly indicated his complicity by communicating via drawing, which was again
not available for trial, as it was described by the naval officer involved as “a scratch
piece of paper I had in my pocket” (United States v. Hasan, Ali, Dire, Gureward-
her and Umar 2011: 202). Other reasons for questioning the legality of the navy’s
actions included the defendant’s inability to speak, read, or understand English, not
being read their rights (violation of the fifth amendment), as well as their being for-
cibly removed from their boat, handcuffed, blindfolded, stripped naked, and then
detained without fully comprehending their situation. For example, the defense
council for Mr. Ali, one of the defendants in the trial, asserted that,
For several days, the defendants were kept handcuffed and blindfolded while
being detained on the ship and surrounded at all times by armed men. At
one point, Mr. Ali was handcuffed with his hands crossed over his head in a
painful position for several hours. Mr. Ali has never been to school and can-
not write in any language. He can speak Somali, but does not speak English.
He has never been to the United States of America, has no experience with
our customs or traditions, and has no familiarity with our judicial concepts
or system.
(United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011b: 2)
The defense attorney for another suspect, Mr. Gurewardher, alleged that he was
abused when he was in US custody, stating “he was physically and verbally abused
and threatened, interrogated, and ultimately coerced into making a false statement
of certain activities that have been used in part to form the basis of the charges now
pending against him” (United States v. Hasan, Ali, Dire, Gurewardher and Umar
2011c: 2). In a similar manner, the defense council for another defendant, Mr.
Umar, argued that
Umar was taken from his boat, handcuffed, placed on his stomach, stepped
upon, and kicked numerous times after his capture. He was then held in
a room aboard the USS Nicholas for four days until being formally inter-
viewed through an interpreter hired by the navy. During the interrogation,
the interpreter was physically in the room with Umar. Umar, however, had
difficulty understanding the interpreter. In response to Umar’s protestations
of his innocence, the interpreter repeatedly stated he did not believe him.
The interpreter told Umar that he must confess and admit to being a pirate
or the navy would throw Umar overboard into shark-infested waters.
(United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011d: 2)
Defendant Hasan also asserted that he did not speak English, had a very limited
education, but also did not know his date of birth and believed himself to be under
the age of 18 years at the time of the alleged offense (United States v. Hasan, Ali,
Dire, Gurewardher and Umar 2011e). As a result, his attorney argued the US had
not followed the proper procedure required for prosecuting a minor under the
Juvenile Justice Act. Despite these motions, the Judge ruled to proceed with the
government’s case. There was no way to verify the defendant’s age, which suggests
that he was already at a significant disadvantage, as the court, including the jury,
would be less likely to believe anything else he said if the court rejected his own
understanding of his age.
During testimony provided for the prosecution, many of the US navy per-
sonnel testified that during the course of his detention on the USS Nicholas one
of the suspects, defendant Gurewardher, after having confessed to being a pirate
to an interpreter via satellite phone, became the “favorite”. He earned this title
because he smiled a lot at the naval personnel and often greeted them by making
the thumbs-up hand gesture. Furthermore, in initial exchanges with the crew of
the Nicholas, where he communicated with hand signals, he was given juice and
oranges by navy personnel. However, when the interpreter spoke with him at a
later date and conveyed to the crew that he believed the suspect to be lying, he
was not given juice or an orange. Although not explicitly stated, the provision of
fruit and juice seemed to be offered as a reward for cooperating with the piracy
investigation. This is further illustrated by defendant Gurewardher’s confusion
about the seriousness of his situation when he was transferred into the custody
of the FBI, as indicated by Lieutenant Hutchins (state’s witness): “He said he
wants to come back to the NICHOLAS. I said, well, ask him why. And he said,
because I like it” (United States v. Hasan, Ali, Dire, Gurewardher and Umar
2011f: 76).
The defendants’ confusion was even further illuminated by their inability to
comprehend some of the most basic English during their own testimonies, and
even with the aid of an interpreter there were difficulties ensuring they fully under-
stood everything. For example, one defendant did not know what months of the
year were, as indicated in the following interaction with his attorney, who asked
him the following;
Q. Do you understand the months of the year?

A. I do not understand.
Q. Do you know what we call March is?
A. March? Tell me. I do not know.
Q. Okay. I’m trying to refer to a date in the past, a time.
(United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011g: 1130–1)
There also seemed to be considerable difficulty in conveying certain concepts, as

indicated by another defendant, Mr. Dire:
Q. Did the bad men give you a ladder, Mr. Dire?

A. What do they call ladder?
Q. You don’t know what ladder is either?
A. No, I don’t.
(United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011g: 1130–1)
Based on the testimony included here, it is hard to imagine that the defendants
fully understood the trial proceedings, the possible consequences of the trial, or
the concept of justice as understood in the US. This was confirmed by testimony
from the interpreter (a US citizen born and raised in Somalia), who indicated that
the defendants would have had no concept of the US criminal justice system, as he
had no understanding of what it was when he first emigrated to the US in 1994 as
a 26-year-old educated man.
Reinforcing the link between piracy and the Somali fishing industry was the
defendants’ understanding of the events that transpired. They all denied being
pirates and claimed they were forced to engage in piracy after having been kid-
napped. For example, when defendant Ali testified he claimed,
we were fishing, we found two lion fish [sharks], we had two lion fish in the
boat. Then all of a sudden two boats came to us. They shot, they fired shots.
They came into our boat and then they beat us.
Q. How did they beat you?
A. Very bad. Very bad.
Q. What else did they do to you?
A. Well, when they beat me up very badly, then they blindfold me, they hand-
cuff me.
Q. What else happened?
A. That’s what happened. They beat us.
(United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011g: 31)
It was following this attack that the defendant asserted his hands were bound behind
his back and left for an unknown period of time, long enough that defendant Ali
said “that [his hands] started swelling” (United States v. Hasan, Ali, Dire, Gure-
wardher and Umar 2011g: 32), and was then forced into another boat, handed
weapons, and told to attack the USS Nicholas.
The defense also arranged for a witness, in support of one of the defendants,
who could confirm that he was indeed a fisherman. This witness testified from
Mogadishu and confirmed that one of the defendants was a fisherman employed
by him through another man, and was using his vessels for the purposes of fishing
for “lion fish” (sharks) and selling them at the Hamar market in Mogadishu. This
witness testifying from Mogadishu also confirmed that the boat known to be used
by the defendant had gone missing in March 2010, and was still missing. He also
said that five other individuals worked with the defendant on the fishing boat, and
that these men were not involved in piracy. The witness also asked for his boat back
and compensation for the taking of his crew (United States v. Hasan, Ali, Dire,
Gurewardher and Umar 2011g). This supports the larger understanding of piracy
as being connected to the fishing industry, as these five defendants, although they
maintained their innocence, were employed as fishermen and may have been moti-
vated by some of the aforementioned political and economic factors (i.e. structural
conditions within Somalia as well as the depletion of Somalia’s fisheries), to engage
in this particular attack.
All of the defendants were found guilty and sentenced to life in prison for the
charge of piracy, and an additional 80 years for the other charges, to be served con-
currently, as well as a $1,300 special assessment fee. The defendants maintained their
innocence, and still seemed not to fully comprehend what was happening to them.
During their sentencing hearing they were each asked whether they wished to
make a statement to the court prior to their sentencing, and each of the defendants
addressed the court. Defendant Hasan stated “I am sorry that I have been accused
of these crimes” (United States v. Hasan, Ali, Dire, Gurewardher and Umar 2011h:
48). Defendant Ali asserted “I do not accept what’s been convicted of me here. I am
being judged on the basis of something I did not commit” (United States v. Hasan,
Ali, Dire, Gurewardher and Umar 2011h: 57). Defendant Dire stated “Well the
only statement that I’d like to make is that I did not commit this crime and I am not
accepting the outcome of this case” (United States v. Hasan, Ali, Dire, Gurewardher
and Umar 2011h: 62). Defendant Gurewardher said “Well, I, I find the crime that I
was found guilty on is unjust” (United States v. Hasan, Ali, Dire, Gurewardher and
Umar 2011h: 68). Defendant Umar addressed the court and said:
Defendant Umar: Well, I do have a question for you.

The Court: Yes, sir?
Defendant Umar: Well, it seems to me that you’re going to sentence me life
sentence?
The Court: Is . . . I’m not sure that’s a question. It sounds like a statement,
Mr. Umar.
Defendant Umar: Yes, that’s – the statement that I’d like to make: I did not kill
anyone. I did not rob anybody. I didn’t attack anybody. I like to
be told the reason that I am found guilty on this case.
(United States v. Hasan, Ali, Dire, Gurewardher and
Umar 2011h: 74)
All of the defendants maintained their innocence and in some instances even
seemed confused by the outcome of the sentencing hearing, which in many ways
was characteristic of their reaction to the proceedings as a whole.
The cumulative treatment of the defendants in the trial undermines the notions
of justice, and further subjected the Somali pirate to policies that not only left them
at the mercy of a unfamiliar criminal justice system, but re-victimized them, result-
ing in a harsh custodial sentence. Additionally, there was little acknowledgment of
the motivations for the perpetrations of the piratical acts, further widening the gap
between the understanding of the Somali pirate as a perpetrator and that of victim
committing a crime in reaction to victimization.
Conclusion
As noted by Lamb (1996: 5), when a crime is committed we “search for representa-
tives of two extremes, perpetrator and victim, two archetypes who will represent
for us evil and innocence, a hero and an antihero, for our modern day saga of
woes.” The reality in this case is not that simple. Rather, the Somali pirate is repre-
sentative of a duality, that of victim and perpetrator, which is then further extended
to include a secondary victimization as a result of the policies enacted to curtail the
problem of piracy in Somalia. The experiences of victimization, such as the eco-
nomic conditions within the country, the illegal fishing and toxic dumping, have
motivated the Somali people to act out efforts to better their current economic and
living conditions, and have pushed some individuals to perpetrate crimes of piracy.
This, coupled with political motivations that are reflective of “deeper problems of
unfairness in international economic order” (Jasparro 2009: 1), where Somali fish-
ermen are being robbed of their fish by foreign interests that engage in both illegal
fishing and dumping, has spurred the Somali fishermen to fight back by engaging
in piracy.
Increased acts of piracy, claims that piracy in Somalia threatens the interests of
global shipping lanes that are instrumental to world trade and corporate profit-
making, as well as allegations that pirates in Somalia are connected to terrorism,
then intersected, providing the catalyst for the initiation of anti-piracy policies.
As with policies at the domestic level, such as those enacted to address the “war
on drugs,” the punishments are disproportionate and harsh and fail to address the
underlying causes and motivations for committing such acts. Also in a similar man-
ner to policies that were initiated to fight the “war on drugs” in the United States
and United Kingdom, the anti-piracy policies initiated at the international level
have led to secondary levels of harm and are targeted at an already vulnerable popu-
lation – the Somali fishermen/pirate.
Drawing on the trial of five Somali nationals in the US, I have shown that the
policies enacted to address the problem of piracy in Somalia are inconsistently
applied, disconnected from the motivations for the crime, and are part of a larger
structural response to the crime that re-victimizes the Somali pirate. The exam-
ples here suggest that those accused of piracy are subjected to legal processes that,
even with the assistance of an interpreter, they are unlikely to fully comprehend.
This leaves them at the mercy of a foreign criminal justice system that investigates,
prosecutes, and punishes them for a behavior that they themselves may not even
consider criminal. The policies that have been enacted to deter piracy have adverse
consequences that perpetuate a cycle of harm, where the victimization of the fish-
ermen of Somalia pushes them towards criminality, and their perpetrations then
make them vulnerable to further victimization because of the adverse effects of
the anti-piracy response. This not only challenges the understanding of the Somali
pirates as being mere perpetrators, but also draws attention to their twofold vic-
timization: the structural conditions within the country that provide the primary
motivations for piracy, and their re-victimization as a result of the enforcement of
the current anti-piracy policy response.
Notes
1 The United Nations Convention on the Law of the Sea Article 101 defines piracy as:
a) Any illegal acts of violence or detention, or any of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft, and
directed: i) On the high seas against other ship or aircraft, or against persons or prop-
erty on board such a ship or aircraft; ii) Against a ship, aircraft, persons or property
in a place outside the jurisdiction of any state
b) Any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft; Any act of inciting or of inten-
tionally facilitating an act described in subparagraph (a) or (b).
2 The IMB is a non-profit actor established by the International Chamber of Commerce
for the purposes of providing a venue for the exchange of information on maritime
crime and fraud at sea for the private shipping industry (International Maritime Bureau
2005).
3 At the time of writing, data from the International Maritime Bureau was available for
only the first three months of 2012 (January 1 to March 31, 2012).
4 The countries include Denmark, Estonia, Germany, Norway, Spain, Sweden, and
Vanuatu.
5 The international political community is defined as “a collective conscience and identity
based on the moral order of universalism and neo-naturalism,” and is associated with
international institutions, such as the UN, that represent a collective international iden-
tity, culturally, morally, and as it relates to state relations at the international level (Rothe
and Mullins 2006: 270).
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6
VICTIMIZING THE
UNDOCUMENTED
Immigration policy and border
enforcement as state crime
Raymond Michalowski and Lisa Hardy
Introduction
This chapter examines how the creation and enforcement of border and immi-
gration policies in the United States and the State of Arizona perpetrate a range
of social injuries against undocumented Mexican and other Latino immigrants.
Specifically, it focuses on:
1. Injuries and other harms suffered by unauthorized northbound border crossers

as the result of U.S. immigration and border enforcement policies, and
2. Harms to the physical health and well-being of Latino immigrants caused by
attrition though enforcement policies designed to narrow access to the necessities
of daily life to the point that unauthorized immigrants will “self-deport.”
There is a third significant source of avoidable social injuries in the U.S.-Mexico

borderlands – the U.S. war on drugs. It is responsible for bloody, inter-cartel battles
in Mexico, corruption of law enforcement on both sides of the border, a danger-
ous merger of drug and human smuggling cartels, and a racialized imprisonment
binge in the United States that has devastated social networks in poor communities
of color (Austin and Irwin, 2011; Jones, 2013; Mauer and Chesney-Lind, 2002;
Thomas and Torrone, 2006). While important, the full consequences of the war on
drugs are beyond the scope of this chapter, and will be addressed only as they bear
on issues related to immigration.
Theorizing immigration policy

The central thesis of this chapter is that the government of the United States and
several of its individual member states can and should be held accountable for
88 Raymond Michalowski and Lisa Hardy
avoidable injuries that result from U.S. border enforcement and immigration poli-
cies. Within the epiphenomenal world of taken-for-granted ideas about immigra-
tion these injuries appear to be the result of wrongful individual choices by undocu-
mented immigrants. In actuality, however, they are the products of an intersection
among three macro-social processes: 1) dramatization of state sovereignty through
hyper-criminalization of irregular immigrants, 2) reliance on supply-side reasoning
to formulate immigration and border enforcement policies, and 3) efforts to pre-
serve “white democracy” in the face of changing U.S. demographics.
Dramatizing sovereignty
Sovereignty is the presumed right of national governments to create and enforce
laws and policies free from interference by other countries. It has been the hallmark
of the modern political state since the 1648 Peace of Westphalia (Philpott, 2001).
A central component of the contemporary image of sovereignty is the ability of a
country to “control” its borders (Krasner, 2001). This image is clearly articulated in
Ronald Reagan’s (1984) oft-quoted claim that: “The simple truth is that we have
lost control of our borders. No nation can do that and survive.” Reagan made this
statement in order to garner support for the passage of what would become the
Immigration Reform and Control Act of 1986. Among other provisions this law
established a pathway to citizenship for undocumented immigrants living in the
United States. Ironically, Reagan’s statement has been adopted as a battle cry by
the current anti-immigration movement, which is fundamentally opposed to the
very kind “amnesty” for undocumented immigrants for which Reagan was arguing
(Medrano, 2011).
The ideal-type Westphalian state exclusively and explicitly determines who and
what can cross its geographical boundary lines. Like many ideal types, the state with
absolute control over its boundaries is more aspirational than real. Since the rise of
mercantile capitalism in the fifteenth century, governments have struggled – and
mostly failed – to eliminate the smuggling of goods, people and money rendered
contraband by their laws and trade policies (Andreas, 2013; Karras, 2009).
While national boundaries have always been permeable to one degree or
another, the present era of neo-liberal globalization has intensified this permeability
(Wonders, 2006). The rise of free trade agreements in the 1970s and 1980s, along
with the emergence of international treaties such as GATT, the WTO, CAFTA
and NAFTA generated significant increases in cross-border flows (Schendel, 2005).
Between 1950 and 2011 the total volume of international trade grew by 700 per-
cent (World Trade Organization, 2012: 202). Legal and illegalized flows of capital,
commodities and information have been accompanied by a collateral increase in
legal and illegalized flows of people. Between 1995 and 2010 the number of people
living outside their country of origin grew by nearly 40 percent, from 166 million
to 213 million (World Bank, 2012). To give this perspective, by 2010 the number
of global immigrants equaled the combined populations of France, Germany and
Great Britain.
Victimizing the undocumented 89
In rich nations of the North, the rise in global flows has created widespread pub-
lic concern that border permeability will weaken the ability of sovereign nations
to govern. As U.S. Congressmen Tom Tancredo and Virgil Goode claimed in
their successful 2001 Congressional resolution, “a nation’s border is essential to its
sovereignty . . . the widespread and unregulated movement of people across the
border of the United States . . . undermines the self-government of the United
States” (U.S. Congress, 2001). Or, as the anti-immigration organization End Illegal
Immigration (n.d.) says in its mission statement, “Our mission is to restore the self
governance of the American public . . . by insisting that our existing immigration
laws are enforced” (emphasis added).
The concern with protecting sovereignty by securing U.S. borders, however, is
a contingent one that is both politically constructed and programmatically racial-
ized. By politically constructed we mean that concerns with inbound border per-
meability focus only on border crossings by people and commodities the state has
determined to be “illicit.” That is, political processes, rather than any straightfor-
ward calculus of harm, have determined what flows will be criminalized, or in
Weber and Pickering’s (2011) words, “illegalized.” For instance, the northbound
transit into the United States of goods made under labor and environmental prac-
tices that are harmful to the workers and natural environments of the countries of
origin is rarely part of the U.S. enforcement agenda. Similarly, the legal cross-bor-
der exportation to developing nations of hazardous substances that cannot be sold
legally in the United States has a long, sordid history (Dowie, 1979; Michalowski
and Kramer, 1987).
The concern for protecting sovereignty at the border is racialized insofar as the
“darker nations” of the global South are imagined to be the origins and the cause
of dangerous flows of people and drugs. By comparison, flows of immigrants and
putatively “safe” legal drugs from more developed, whiter nations of the global
North receive less scrutiny and generate fewer sanctions.
Managing both legal and illegalized border permeability has long been a fixture
of capital accumulation strategies in the United States. At times, lowered trade bar-
riers and generous immigration policies have been used to provide business with
profitable access to raw material, labor and products. Conversely, at other times
various sectors of capital have promoted higher tariffs to limit incoming flows of
lower-cost goods and services. Similarly, during periods of high unemployment,
mobilized workers have pressed for stricter immigration laws to reduce what they
believe is competition from immigrants willing to accept lower wages and more
difficult working conditions (Daniels, 2004). To the extent that the demand for
particular goods or for foreign labor remains in spite of laws designed to restrict
their flow, attempts to make a border less permeable to their passage turns goods
into contraband and workers into illegalized immigrants.
It is not only legal flows that facilitate capital accumulation. Illegalized flows
of goods and labor have long played an important role in the pursuit of profit.
Flows of illegalized immigrants provide a labor supply that is less costly to employ
and which, in the absence of labor laws that apply to all workers regardless of
immigration status, erodes the bargaining power of native-born workers. The

presence of illegalized workers also helps preserve the legitimacy of capitalist
arrangements during periods of economic recession or depression by redirecting
middle- and working-class frustrations toward the government that supposedly
failed to “control its borders” rather than on the role of economic and political
elites in authoring market failures.
Faced with opposition to immigration and claims about out-of-control bor-
ders, the United States government periodically has sought to affirm its sover-
eignty by hyper-criminalizing undocumented immigrants through rhetoric and
enforcement campaigns that characterize unauthorized immigrants as serious
criminal threats to the nation’s well-being. What these campaigns obscure is that
the vast majority of undocumented immigrants living in the United States are
law-abiding residents who are guilty, at most, of a civil law infraction. Undocu-
mented immigrants living in the United States who were brought here as chil-
dren by their parents are guilty of neither civil nor criminal violations (Associated
Press, 2013). Transforming undocumented immigrants into criminals, however,
provides political justification for displaying powerful symbols of sovereignty
along the U.S.-Mexico boundary line such as walls, fences, patrol vehicles, armed
guards, helicopters, unmanned drones, and detention centers. These dramas of
sovereignty, however, come at the cost of avoidable deaths and injuries as hyper-
criminalized border crossers make increasingly hazardous journeys and internal
immigration practices increase racial profiling of targeted immigrants and those
who look like them.
Another area where the hyper-criminalization of undocumented immigrants
generates social injury flows from the “necropolitics” of health and health care.
Mbembe (2003) defines necropolitics as the power to determine who shall live and
who will be allowed to die. The factors and forces that promote health typically
flow toward economically developed states, while those linked to poor health flow
toward less developed ones (Farmer, 2006). Thus, while diseases and their causes
flow freely across borders, developed states typically establish border enforcement
policies that prohibit people from poorer countries from crossing in search of better
health care unless they are wealthy enough to pay First World prices for that care.
The necropolitics of health also extends to “outsiders” living in wealthy nations. In
the United States, for instance, both the federal government and individual states
have increasingly limited immigrants’ access to public health benefits and medical
resources, as we discuss in the section on health care below.
The flow of body parts is yet another example of the necropolitics of borders
and health. Medical anthropologists have documented how organs harvested from
the bodies of the poor in developing nations flow freely across international bound-
ary lines and into the bodies of the unwell in affluent countries (Scheper-Hughes
2000). In a grotesque irony, people in poor nations needing health care cannot eas-
ily cross into developed countries where that health care is more readily available,
but their body parts, once harvested, are allowed to enter in order to advance the
health of residents of those developed countries.
In short, the lives of those in poor countries who fall victim to the structural
violence of globalization are held to be less valuable than the lives of those in devel-
oped nations who reap the greatest benefits from the new international economic
order. The permeability of borders when needed to advance the health of those in
the global North, and their relative impermeability when it comes providing access
to the necessities for a healthy life for those living in the global South reveals a
casual willingness to let devalued others suffer avoidable illnesses and die unneces-
sarily early deaths.
Supply side border policies

Supply side models propose that illicit flows are best slowed or stopped by cutting
them off at their source (Nayyar, 2000). In the case of illegalized immigrants, the
assumed solution is to reduce or eliminate the flow of people entering the United
States. Comparatively little attention is given to the demand side of the equation, to
the many ways in which the U.S. political economy actively entices people to cross
the border without papers by providing a broad arena for employment during good
economic times while enforcing a very narrow gate for legal entry. Policy options
that could reduce harm in the borderlands by adapting demand side changes, such
as balancing the legal labor supply with labor demand, get little hearing in a climate
where supply side ideology furnishes the conventional wisdom.
In the case of drugs, supply side ideology directs attention to reducing the flow
of illicit drugs entering the United States. This is the core international strategy of
the U.S. “war on drugs.” This supply side approach has turned cheap products into
highly profitable contraband, with all the social harms that entails, and all for no
reduction in drug use or drug availability in the United States (Baum, 1996). Since
the U.S.-Mexico borderlands is a significant – although not exclusive – source of
illegalized drugs flowing into the United States, supply side interdiction strategies
focus primarily on prohibited drugs crossing northbound into the United States
(Becker and Murphy, 2013). These practices have generated a number of bor-
derland social harms. Drug cartels have grown powerful and have largely taken
over the human smuggling in the U.S.-Mexico borderlands; penurious, would-be
immigrants who cannot pay the prices required by human smugglers are turned
into drug mules; a steady stream of drug-financed weapons flows from the United
States into Mexico; and law enforcement agents on both sides of the border are
corrupted with drug money (Ortega, 2013a).
White democracy
The racialized nature of border and immigration policies means that material inju-
ries and other social harms resulting from the dramatization of sovereignty and sup-
ply side ideology occur more often along the U.S.-Mexico border than to people
crossing the “whiter” U.S.-Canada border or to the many immigrants from Europe
and Asia who enter by plane or boat and then overstay their initial entrance visas.
These enforcement priorities reflect growing racialized fears among politically

influential segments of the non-Hispanic white population in the United States,
particularly conservative and far right Republicans.
As a result of high levels of immigration over the last four decades and higher
birth rate among immigrants, non-Hispanic whites are on track to lose their posi-
tion as the nation’s demographic majority (U.S. Census Bureau, 2012). According
to the Pew Research Center, by 2042 no racial or ethnic group will constitute a
statistical majority in United States (Taylor and Cohen, 2012). These changing
demographics have led a segment of non-Hispanic whites to advocate both limit-
ing legal immigration and sealing the U.S.-Mexico border against unauthorized
immigration in order to protect the culture of white America (Costelloe, 2008;
Dougherty, 2004; Hanson, 2003).
The desire to protect white culture is an outgrowth of the practice of racialized
citizenship that has been a fundamental part of U.S. society since its beginnings.
Reflecting already established ideas about race and citizenship, the first session of the
U.S. Congress established that citizenship was reserved for those who met the “free
white person” test, and that white people could not be slaves (Painter, 2011; U.S.
Congress, 1790). During the herenvolk democracy (1662–1865) and its reconfigura-
tion in the form of Jim Crow society (1876–1965) this racial order ensured that any
white person, however mean his or her circumstances, enjoyed social and political
superiority over anyone with any African heritage, regardless of whether that person
was enslaved or free. W.E.B. Dubois (1935) termed this a “psychological wage” for
whiteness, that is, a perceived sense of superiority all whites enjoyed over all blacks.
The wages of whiteness are not just a matter of social differentiation. Capital accu-
mulation derives, in part, from the spread between the value workers produce and
the wages they are paid. Social and political solidarity within the working class threat-
ens to narrow this spread while social divisions facilitate greater extraction of surplus
value by weakening the ability of the working class as a whole to mobilize against
corporate interests. In the United States, the political economic consequence of the
wages of whiteness was that white workers were more likely to align themselves with
the interests of white elites than with black workers, creating a barrier to forming a
racially united working-class movement (Dubois, 1935; Olsen, 2004).
The civil rights movement and the passage of the 1964 Civil Rights Act threat-
ened the “wages of whiteness.” By eliminating de jure segregation and narrowing,
even somewhat, the social, economic and political gap between white and black
America, the civil rights movement threatened the psychological certainty of white
superiority. As some (but far from all) African-Americans began to live lives and
enjoy social opportunities once only accorded to whites, the wages of whiteness
faced potential devaluation. We suggest, however, that this devaluation was slowed
as the role of sub-citizens with limited personhood, once occupied by African-
Americans, became increasingly populated both numerically and conceptually by
“illegal immigrants.” Whites might no longer feel superior to all African-Ameri-
cans, but both white and black Americans could feel superior to “illegal immi-
grants,” who had no right to even be present in the society.
We suggest that the rise of anti-immigrant legislation, particularly attempts to

deprive unauthorized immigrants of access to the basic requirements for societal
membership such as work, education, health care, recreation and public partici-
pations, is animated by (perhaps unrecognized) desires to protect the wages of
whiteness.
Immigration policy and social injury
The highway of death

Since the early 1990s, hundreds of unauthorized border-crossers have died every
year in the deserts north of the U.S.-Mexico border in their attempt to reach
safe havens somewhere in the Southwest. Many more suffer illness and injury as
a result of their efforts to reach the United States via ever more hazardous border
crossings.
There have always been some migrant deaths during unauthorized crossings into
the United States. They were, however, relatively few until 1994, when Operation
Gatekeeper established a new border enforcement strategy. Prior to Gatekeeper,
the U.S. Border Patrol focused its efforts primarily on apprehending undocumented
border-crossers once they were in the United States. The underlying logic of Gate-
keeper, in contrast, was based on deterring would-be migrants from trying to cross
the border by flooding popular crossing areas around San Diego with Border Patrol
agents, erecting fences and other barriers, and engaging in active “internal enforce-
ment,” that is, detecting, detaining and deporting undocumented immigrants in
cities, towns and other places well away from the immediate border. In theory,
dramatizing the difficulty of crossing and the high probability of capture if one did
make it across the line would serve as an effective deterrent to unauthorized border
crossings in the San Diego sectors (Nevins, 2010).
The architects of Operation Gatekeeper clearly misunderstood the level of
desperation driving immigrants to attempt unauthorized entries into the United
States. Rather than deterring unauthorized border crossings, the new strategy sim-
ply compounded the risk for crossers. As Eschbach, Hagan and Rodriguez (2001)
observed:
Illegal border crossing patterns have been spatially restructured to circumvent

areas of high border enforcement, and the whole border region, from Texas
to California, has become a more dangerous area to cross for illegal entrants
than before the new enforcement efforts of the 1990s.
The evidence for this claim is in the numbers. In 1994, Gatekeeper’s first full year of
operation, 24 migrant deaths were reported in the San Diego borderlands. By 1998
the border death toll had reached 147 and continued to climb (Nevins, 2010).
Instead of prompting a rethinking of the clearly deadly consequences of more
patrols and walls, the 600 percent increase in the official death count in Gatekeep-
er’s first four years led to more of the same. Prompted by the politics of a growing
anti-immigration movement, the U.S. government embarked upon the Sisyphean
task of making the entire U.S.-Mexico border impermeable to unauthorized bor-
der-crossers. As a result, by 2005, with border militarization now extending from
San Diego to El Paso, the death toll reached 500 (GAO, 2006). With the onset
of the Great Recession and the corresponding shrinking of the U.S. labor market,
border deaths dropped slightly to 375 in 2011, but surged back to 476 in 2012,
even as the number of people attempting to cross dropped (Gomez, 2013).
As grim as they are, these figures underestimate the actual number of migrant
deaths. According to the GAO (2006), the Border Patrol’s Tucson Sector under-
counted migrant deaths by 32 percent in 2002, 43 percent in 2003 and 35 per-
cent in 2004. This undercounting is a consequence of Border Patrol practices that
record deaths as “migration related” only if they occur in counties adjacent to the
U.S.-Mexico border and a Border Patrol agent either found or was led to a corpse
or remains in situ. As part of this protocol, the Border Patrol also excludes skeletal
remains from unknown years, or bodies determined to be those of human smug-
glers (King, 2006).
Forensic recording practices are not the only barrier to accurate counts of migrant
deaths. Every year, some unknown number of migrants die in the desert but never
appear in any database because their bones are so bleached by the sun and so widely
scattered by animals that it would take forensic anthropologists years to determine
the number of individual human beings they represent (Annerino, 1999). This
is not dramatic hyperbole. Nearly every week immigration rights organizations
receive calls, e-mails or faxes from Mexico seeking information about loved ones
who attempted a desert crossing and were never heard from again. Equally poign-
ant are the homemade signs taped to bus stops in Latino neighborhoods in Ari-
zona. Sometimes computer-generated, but more often handwritten, they bear the
name, description and sometimes a photo of a missing border-crosser, along with
a telephone number to call should someone have any information regarding the
person’s whereabouts (Michalowski, 2007). According to the Mexican Ministry of
Foreign Relations, which records all Mexicans reported missing on a journey into
the United States, the Border Patrol figures may underestimate actual migrants’
deaths by as much as 300 percent. In 2000, for instance, the Border Patrol reported
a total of 140 migrant deaths, while that year the Mexican ministry identified 497
citizens missing in Arizona’s borderlands (CARLA, 2004).
Even if you survive

Migrant deaths are the visible tip of an iceberg of human suffering. In addition to
the risk of dying in the desert, undocumented immigrants crossing the borderlands
are injured as pedestrians while attempting to cross roads or highways in border
regions and as passengers in vehicles operated by human smugglers. Anyone liv-
ing in the U.S.-Mexico borderland is familiar with almost weekly stories of some
van, horse-trailer or pick-up truck that ran off a road, overturned or struck another
vehicle, tree or bridge, resulting in serious injuries to the migrants packed inside. In
many instances, these crashes were the result of pursuit by Border Patrol vehicles
(Eschbach, Hagan, and Rodriguez, 2001).
Days spent afoot in the borderlands of California, Arizona and Texas can result
in other physical trauma, including broken bones, cuts, bruises, blisters and snake,
scorpion or centipede bites, as well as exposure to both killing heat in the deserts
and dangerously cold temperatures in the mountains. Although some of these
physical problems are annoyances, others can be lethal. The coyotes who work for
human smuggling syndicates will not risk losing their “load” to the Border Patrol
because they slowed down to care for an afflicted migrant. Under these circum-
stances, the injured or ill are abandoned to their own fate in the desert (Steller,
1999; Terry, 1998).
Volunteers from migrant aid groups working in Arizona such as the Samaritans
and No More Deaths report encountering border-crossers suffering from medi-
cal problems such as cerebral stroke, heart attacks, insulin shock, dysentery from
drinking contaminated water and heat stroke (Samaritans, 2006). In addition to the
immediate effects of exposure and injury, unauthorized border-crossers risk longer-
term health consequences from severe dehydration, which can lead to chronic
fatigue, high blood pressure, arthritis, colitis and muscular dystrophy (Hicks, n.d.).
It doesn’t happen by accident

The death, injury and illness suffered by irregular migrants crossing the South-
western borderlands are not the unintended collateral damage of otherwise benign
immigration policies. They are the known and predictable results of border mili-
tarization strategies designed to force migrants toward dangerous crossings. U.S.
policy planners made the deadly consequences of border militarization part of their
overall plan to gain “control” of the U.S.-Mexico border. In 1994, the U.S. Bor-
der Patrol acknowledged that Operation Gatekeeper would force migrants to take
routes that placed them in “mortal danger” due to “extremes of heat and colds.”
Forcing desperate migrants to make hazardous journeys was seen as an important
“deterrent” rather than a violation of human rights and thus a state crime (U.S.
Border Patrol, 1994).
Contradictorily, Border Patrol agents devote considerable time and effort to
assisting migrants in distress, often saving lives in the process. These honest efforts,
however, take place within a perverse policy framework that deliberately increases
the chances that migrants will face life-threatening conditions while simultaneously
directing Border Patrol agents to provide “humanitarian” assistance to the very
migrants its enforcement mission has forced into high-risk crossings.
U.S. border militarization policies are also responsible for the emergence of a
new breed of organized crime along the U.S.-Mexico border – human smuggling
syndicates. These new organized crime cartels offer point-to-point services that, for
a substantial fee, will transport migrants from Mexican border towns such as Agua
Prieta and Altar to their desired destination somewhere in the United States.
Before the border militarization project that began with Operation Gatekeeper
in California in 1994, unauthorized border crossers typically paid a coyote $200 to
$400 to help them cross the U.S.-Mexico boundary line, usually somewhere near a
border town such as San Diego, Nogales or El Paso. Once across the boundary, the
coyote might bring them to a nearby road where the migrants would rendezvous
with a friend or another part-time smuggler who would drive them across the bor-
derlands to their first urban stopping point. From there, migrants would travel on
their own to some final destination. Also, in pre-Gatekeeper days, many migrants
simply slipped across the boundary into border towns such as Nogales without the
aid of a coyote (Estrada, 2006). As the risks and difficulties associated with border
crossing increased, smaller “mom and pop” coyote operations either grew into
larger organizations, folded or were driven out of business, sometimes at the point
of a gun, by emerging criminal syndicates (Bevalaqua, 2006).
Faced with an increasingly militarized border, migrants seeking entry into the
United States had little choice but to engage the services of these new criminal syn-
dicates. The increasing demand for smuggling services, coupled with the increas-
ing difficulty of moving unauthorized migrants, not only across the international
boundary but also onward to their final destinations, enabled smugglers to charge
considerably more for their services (Laufer, 2004). As prices rose first to $1,000,
and then to twice that and more, the system of payment underwent an important
change. According to our informants, most unauthorized migrants entering the
United States from Mexico do not have the large fees required by smugglers. Now,
instead of up-front payments to coyotes, the new system requires payment of an
initial fee – usually $400 or $500 – with additional payments made by wire transfer
to a syndicate front account as each phase of the journey is completed. Often, a
family member already in the United States makes these payments.
This system has transformed unauthorized migrants from human beings into
commodities. Groups of migrants are now a valuable load, un cargo, to smugglers.
All of the practices connected with transporting and protecting shipments of illegal
drugs now apply to human cargos of migrants: loading as much “product” into
transport vehicles as possible, jettisoning anything that might increase risk of cap-
ture (i.e., migrants unable to keep up the pace of marching across the desert) and,
in some cases, raiding rival syndicates to steal their loads (Muench, 2007).
As exploitable commodities, irregular migrants are charged large fees for what
would be an inexpensive journey for any tourist with money or a Mexican with a
work permit. They are subjected to abusive conditions, including being crammed
into transport vehicles and drop houses. In one instance, the Border Patrol found
116 migrants imprisoned in a drop house without a functioning bathroom in Rio
Rico, Arizona (Mackey, 2006; Quinn, 2006). In the migrant corridor between
Nogales, Sonora and Tucson, Arizona one can find abandoned house-trailers in
remote areas that are used as smuggling way stations. There, soiled mattresses fill
every room, waste, garbage, spoiled food and sad piles of used, disposable diapers
are evidence of the exploited and desperate conditions of the migrants who have
been held there.
Migrants suffer other, worse forms of exploitation at the hands of smugglers.

Women migrants are sometimes raped by coyotes who know their victims will
not dare report them to the police (Arizona Republic, 2007). Sometimes migrants
who do not have friends or relatives to guarantee payment, particularly if they are
young, healthy men, are coaxed into serving as drug mules, their smuggling fee
waived in exchange for carrying a 40- or 50-pound pack of marijuana or cocaine
across the border (King, 2006).
Immigration policy and dehumanization

Dehumanization projects are group solidarity exercises based on claims that some
targeted “other” lacks the shared humanity and rights of the group doing the tar-
geting. This denial of rights then justifies both rhetorical and material brutalization
of the enemy other (Opotow, 1995). U.S. border enforcement policies are dehu-
manizing insofar as they foster images of irregular migrants not as ordinary human
beings seeking work, security and/or family reunification inside the United States,
but as threats to the nation’s security (Andreas, 2000).
The application of military technology and tactics, and increased deployment of
heavily armed agents to control the U.S.-Mexico boundary, promotes a conceptual
shift in the popular understanding of irregular migrants. In popular consciousness,
armies exist to fight enemies. Consequently, the deployment of military personnel,
machinery and tactics throughout the U.S.-Mexico borderlands reframes immigra-
tion control as war-fighting, and unauthorized immigrants as enemies. Since the
attacks of September 11, 2001, the political right has intensified this reframing by
conflating northbound migrants with foreign terrorists and criminals to justify calls
for even more border militarization (Bailey, 2006; Renzi, 2006).
The literature on dehumanization in wartime is dense with examples that show
how the ascribed status of the “enemy” became a warrant for violations of human
rights (Deutsch, 2000; Gamson, 1996). In the case of U.S. border control, this
dehumanization is manifested in practices such as referring to irregular migrants as
“tonks” (the sound of hitting a migrant over the head with a Border Patrol flash-
light), punishing migrants by driving “dog wagons” loaded with migrants rapidly
over badly rutted dirt roads or holding migrants in crowded transfer pens, some-
times without adequate food, water or bathroom facilities, and using lethal force
against suspected, unarmed smugglers (Cruz, 2006; Ortega, 2013).
Enter attrition through enforcement

The dehumanization of migrants draws additional energy from a growing move-
ment within state and local governments to criminalize the presence of migrants in
the United States. In 2006, for instance, the Maricopa County Attorney (greater
Phoenix) interpreted a state anti-human smuggling law as allowing for the felony
prosecution of migrants as human smugglers if they paid a coyote to help them enter
the United States (Associated Press, 2006). During the 2007 Arizona legislative
session, lawmakers approved a bill that would make it a crime of criminal trespass for
any irregular migrant to be in the state (Arizona House of Representatives, 2007).
In 2010, the State of Arizona gathered a suite of anti-immigrant measures under
the title of the Support Our Law Enforcement and Safe Neighborhoods Act, commonly
known as SB 1070. Among its most controversial provisions, SB 1070 defined the
federal civil violation of failing to possess appropriate immigration documents as a
criminal act under Arizona state law, authorized local police to question and arrest
without a warrant anyone they suspected of being an illegal immigrant, made it a
crime to “harbor” or “transport” unauthorized immigrants, authorized the state
to impound any vehicle driven by or used to transport an irregular migrant, made
it a state crime for irregular migrants to seek employment, prohibited cities from
passing laws that would limit their police departments from enforcing SB 1070 and
intensified measures to exclude illegalized immigrants from seeking social services,
even when they were doing so on behalf of their U.S. citizen children (Arizona
State Legislature, 2010).
SB 1070 was not some idiosyncratic piece of legislation from a rogue state.
Rather, it was the first act of a national movement to establish “attrition through
enforcement” as a centerpiece of U.S. immigration policy. According to Mark
Kirkorian, head of the anti-immigration Center for Integration Studies, and one of
the policy’s architects, attrition through enforcement is designed to make ordinary
life so unlivable that illegalized immigrants and their families will “self-deport”
(Kirkorian, 2005).
Rather than criminalizing specific harmful behaviors, attrition through enforce-
ment drives undocumented immigrants into social spaces where work, education,
social services, legal protections and many of the public interactions of ordinary
daily life are increasingly unobtainable (Michalowski, 2012). The theory is that
increased fear of detection, coupled with narrow or no access to normal life activi-
ties such as work, mobility, recreation, health care, police protection and social
services, will lead irregular migrants to self-deport, taking their U.S.-citizen chil-
dren with them (Kirkorian, 2005). This legislative strategy both rests on and repro-
duces a hyper-criminalization of illegalized immigrants that transforms the act of
having entered the country “without inspection” or overstaying a visa into a master
status, a quality that renders everything the person is and does as criminal (Downes,
2007). In short, SB 1070 and the underlying policy of attrition through enforce-
ment seek to transform undocumented immigrants into non-persons who not only
in Arendt’s (1973) words have no “right to have rights,” but who also do not have
the right to presence.
On June 25, 2012, in the case of Arizona v United States, the U.S. Supreme
Court (2012) in a ruling narrowly drawn around issues of State versus federal juris-
diction, upheld the cornerstone of attrition through enforcement by ruling that it is
constitutional for a state to mandate that city and state police ask those they believe
might be in the country without authorization to prove their citizenship or legal
residency. The Court struck down several other SB 1070 provisions but was silent
about the criminalization of “harboring” (Rau, 2012). This harboring provision
is particularly disruptive of social relations in Latino communities, as we discuss

below. As of this writing, suits against it are ongoing.
Although the evidence is unclear regarding whether SB 1070 has led to more
detentions and deportations of undocumented immigrants in Arizona, the fear cre-
ated by the law is not in doubt. The following section examines the impact of this
fear on public health in Arizona’s Latino communities.
Immigration, fear and public health

Undocumented immigrants crossing the U.S.-Mexico border are not the only vic-
tims of U.S. immigration policy and border enforcement strategies. Those living in
the United States, and particularly in states such as Arizona that are dominated by
the politics of white nativism, face a number of threats to their physical well-being
that are the intentional outcomes of attrition through enforcement laws. Many of
these harms flow from efforts to deny undocumented immigrants access to ordinary
social engagement such as employment, health care, education and free mobility,
that is, removing them from communities even while they still live there. This exclu-
sion from public participation occurs not through walls and gates, but by policies
that remove people from particular social spaces (Low and Smith 2005). In doing
so, these exclusions alter communities by reifying and hardening existing borders
of class and ethnicity.
Arizona’s zero-tolerance model of immigration law is both created and reflected
through vocal opposition against providing life opportunities, social services and
medical attention to undocumented residents, regardless of the need. The combi-
nation of anti-immigrant rhetoric and anti-immigration law in Arizona has created
mobility-limiting fears that make it difficult for many Latinos to pursue healthy
lives and to obtain health care services when they need them (Hardy et al., 2012).
In Arizona, there is a widespread concern among Latinos that they might be
labeled an “illegal immigrant,” even if they are citizens or legal residents (McDowell
and Wonders, 2010). The feeling among Arizona’s Latino population, whatever their
immigration status, that they are the target of hostile gazes is the product of the mass-
mediated circulation of ideas that “illegals” can be identified by some combination of
clothing, skin color, hair and identifiable markers of social class (Kolodenko, 2010;
Muskus, 2010). This has led Latinos, and particularly those who are undocumented,
to self-limit their mobility and participation in community and social life.
SB 1070 further intensified the social isolation of undocumented immigrants by
making it a crime to “harbor” or transport an undocumented person (Johnston and
Morse, 2010). Latino citizens and legal permanent residents with family members
or friends who are undocumented have come to fear that simple activities such as
social gatherings where some guest might lack papers, or driving an undocumented
friend to the store, school or a doctor’s office could lead to being questioned or
even to arrest (Hardy et al., 2012). This restructuring of “public space” has had
deep and multigenerational consequences for the bodies of those people deemed to
be illegal and out of place.
Health
Ordinary ideas of health can be somewhat misleading when attempting to under-
stand the harms that attrition through enforcement laws impose on the bodies of the
undocumented and those they know. The term health tends to direct our attention
toward specific, medically diagnosable illnesses and their related symptoms. The
routine bio-medical system approaches disease and symptoms of medical risk in
a way that typically overlooks the role of structural inequalities in generating ill-
health. Whether it is the role of environmental toxins in causing cancer, the role of
poverty in generating higher rates of hyper-tension or the role of narrowed life space
in creating medical problems among undocumented immigrants, routine medical
models typically overlook the ways in which structurally induced limitations on
quality of life shape the incidence and prevalence of observable medical problems.
When immigration law and enforcement practices deem people to be illegal,
those so deemed come to see ordinary public activities as dangerous. The result is
that they self-limit their activities in ways that cause multiple immediate and long-
term damage to their well-being. In a world colored by fear-induced mobility
restrictions, people avoid walking or recreating in public. They keep their children
inside instead of encouraging them to play outside or in public parks. People in
Latino communities who feel at risk from immigration law enforcement by local
police avoid traveling to doctor appointments or medical clinics, or leaving their
neighborhoods to shop at stores where they can purchase fresh produce. In the
food deserts that characterize most low-income urban neighborhoods in the United
States, people who are fearful of leaving their neighborhoods are often unable to
obtain the foods needed for a healthy diet (Centers for Disease Control, n.d.).
Limiting immigrant access to public benefits and government-subsidized
health resources is not new. As part of the Clinton-era welfare reform program,
the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA) denied legal immigrants access to Food Stamps, Supplemental Social
Security, and Medicaid for five years after entry into the country, and denied such
access to all undocumented immigrants permanently. It gave states greater latitude
in denying benefits to immigrants and went so far as to “prohibit states from using
their own funds to provide many kinds of assistance to undocumented immigrants”
(NASW, 1996). Studies of the Welfare Reform Act of 1996 revealed a major with-
drawal of participation of immigrants from public assistance programs (Fortuny and
Chaudry, 2011). This policy change created the context within which the Arizona
state government could move to even further extremes in making life difficult for
undocumented immigrants.
In addition to denying undocumented immigrants access to federal and state
health resources, SB 1070 and other attrition through enforcement laws raise fur-
ther barriers to health care access by creating a climate of uncertainty for both
health care professionals and undocumented immigrants in need of health care. In
a climate of legal contestation over the interpretation and constitutionality of these
laws, health service providers are often unsure what levels of care they can legally
provide, even where such care is not paid for by federal or state dollars. Similarly,
undocumented immigrants are often unsure where they can go for health services
without violating restrictions on their access to publically funded health care. Our
own research in Flagstaff and Tucson revealed that undocumented residents would
rely on trusted community members to tell them where they could safely obtain
health services. At the same time we also found that SB 1070 had created a climate
of fear among health care workers in local clinics, who fear that having their insti-
tution identified as one that served “illegals” could jeopardize the workplace and
their jobs.
It is well established that adults and children who do not receive health care, who
do not have access to fresh foods, who self-limit their physical activity and who live
with stress and fear are at increased risk for diabetes, heart disease, high blood pres-
sure, metabolic syndrome and overall early mortality (Chaudry et al., 2010; Pow-
ell et al., 2007; Suárez-Orozoco et al., 2011; Yoshikawa and Kalil, 2011). These
are exactly the behavioral consequences created by laws designed to limit the life
activities of undocumented immigrants in the hopes that they will self-deport.
Community health
The fear that results from laws designed to promote attrition through enforce-
ment not only threatens the health of adults and children, it also weakens the
overall health and vibrancy of communities as people begin to withdraw from
public participation. After the passage of SB 1070, people working and living in the
neighborhood in Flagstaff with the largest percentage of Latino residents observed
fewer people speaking Spanish in public places and a decline in the use of pub-
lic parks. Criminologists who study environmental design have long known that
vibrant social interaction is an important part of safe communities (Crowe, 2000).
A decline in public social connections makes neighborhoods less safe because it
decreases the likelihood that people will report crimes or problems to authorities.
It also reduces the chances that they can alert others in their neighborhoods to
potential threats. In these ways the fear and reduced public interactions created by
attrition through enforcement laws has increased the risk of crime in communities
where the undocumented live, making them less secure and less able to mobilize
the social connectedness that is vital for individual and community health.
Identifying health impacts

Health researchers have long understood that impeded mobility and long-term fear
are detrimental to human health. It is, however, difficult to measure these patterns
in populations who live in the shadows. Compounding the difficulty of making
conclusive statements about the breadth of such damage caused by anti-immigra-
tion campaigns to individuals, families and communities is the fear among public
servants and service providers who work in a climate of anti-immigrant hatred and
blame.
We do know from public health research that life expectancy can vary by as
much as 25 years between neighborhoods separated by only a few miles, depend-
ing on resources, stress levels and availability of healthy and fresh food, open
space and health care in those neighborhoods (Baranowski and Baranowski,
2007). Researchers have also documented that peers influence one another when
it comes to health. There is a clear correlation between social connectedness and
health resulting from the fact that one person can influence his or her entire social
network by modeling positive or negative health behaviors (Brown and Roberts,
2012). Therefore, it is reasonable to conclude that a decline in health behaviors
caused by attrition through enforcement laws will not be limited to just those
who are fearful because of their immigration status. These behaviors have the
potential of reverberating through communities overall (Cavazos-Rehg, Zayas,
and Spitznagel, 2007).
In addition to the collateral health damage resulting from law-induced fear, Ari-
zona policy makers have also sought more direct ways to use lack of access to health
care as a strategy to force undocumented immigrants to self-deport (Agraharkar,
2010). In 2011, the Arizona State Legislature introduced a suite of bills that would
have denied all undocumented immigrants access to any health care, including
emergency life-saving procedures, and would have held health care providers crim-
inally liable for providing health care to undocumented immigrants. In should be
noted that these bills violate the provisions of the 1986 federal Emergency Medical
Treatment and Active Labor Act (EMTALA) which requires hospitals to provide
emergency health care regardless of citizenship status, legal status or ability to pay
(U.S. Congress, 1986). The bills in question failed, but only by a narrow margin
and only after an 11th-hour intervention by a coalition of Arizona businesses that
feared that their passage would further harm Arizona’s image as a good place to
visit, relocate or do business (Michalowski, 2013). Given the recent success of Ari-
zona in having the core of SB 1070’s attrition through enforcement strategy upheld
by the Supreme Court, it is entirely possible that these bills may, zombielike, return
for consideration in the Arizona state legislature.
“Don’t quote me”

The intent and design of the current anti-immigration campaign emphasizes remov-
ing unwanted “others” from public space. In practice these policies pressure indi-
vidual service providers to choose between enforcing immigration law and risking
their livelihood. Beyond this narrow, self-interested calculus, however, laws that
turn public service workers into remote-control immigration officers force people
to choose between fulfilling the ideals of their chosen professions and possibly los-
ing their ability to practice these professions at all (Sontag, 2008).
One example of the contradiction between professional ideals and attrition
through enforcement mandates is the SB 1070 requirement that local police
enforce federal immigration laws even though they might believe it is not in the
best interests of justice, or when they fear that being viewed as immigration officers
will jeopardize their ability to serve communities with large immigrant popula-
tions, due to increased fear of police (Major City Police Chiefs, 2006). Health care
providers face similar conflicts. During our research we spoke with top-level direc-
tors and administrators of health care organizations who were convinced, based
on their own observations and their data on service utilization, that SB 1070 was
having serious negative impacts on public health. However, in nearly every case
we were told, “don’t quote me on that.” The hostility and rhetoric surrounding
the campaign against undocumented immigrants in Arizona has reached a level
where health administrators feel reluctant to come forward with real-life obser-
vations, data and research findings that might be interpreted as sympathy toward
undocumented immigrants. This contributes to a conspiracy of silence that helps
obscure the avoidable human harms generated by the pursuit of attrition through
enforcement.
Overall, decisions to minimize harm and maximize care, and the empathic,
humanitarian reasoning that supports them, are increasingly being displaced. In
their place we see growing pressures to further victimize the politically weakest in
our society. This is not an unavoidable outcome of otherwise sound policy. It is the
result of a deliberate strategy of causing harm to undocumented immigrants in the
hopes that they will go away.
Conclusion
Currently, communities on both sides of the U.S.-Mexico boundary line suffer
serious social injuries from U.S. immigration and drug war policies. Borderland
towns are subjected to the presence of heavily armed border guards, “sky-box”
cameras that observe minute details of private life, nights that never go dark due to
high-power lighting along border fencing and periodic visitations by armed, anti-
immigrant vigilantes. In the deserts and mountains outside these towns, would-be
immigrants without papers sicken, are injured or die during their attempted jour-
ney from the boundary line to safety inside the United States. In southern U.S. bor-
der states, undocumented immigrants and their families face the multiple harmful
consequences that flow from being forced to live ever deeper in the social shadows
by attrition through enforcement legislation such as SB 1070. Across the border, in
Mexico, cities and small towns have become dense with desperate migrants seeking
to cross the U.S. border, even more desperate migrants who have depleted their
financial and physical resources only to be sent back to Mexico by the U.S. gov-
ernment and growing syndicates of violent human and drug smugglers who extract
great profits from this daily cauldron of human misery.
Could this be different? We propose four changes to immigration and drug poli-
cies that we believe would reduce the level of victimization of the undocumented at
far less financial and social cost than current control strategies. These are: 1) de-mili-
tarize the U.S. Mexico border, 2) reform U.S. immigration policy to permit routine
lawful entry by those seeking to work and/or live in the United States, 3) replace
the failed drug war with a harm-reduction model that would decriminalize currently
targeted drugs and substitute drug treatment for the prosecution and imprisonment
of those addicted to these drugs, and 4) eliminate attrition through enforcement as an
immigration control strategy.
If immigrant hopefuls had a reasonable expectation of being allowed into the
United States if they appeared at formal border stations, there would be a substantial
decrease in the number of people who would feel compelled to risk a dangerous,
undocumented entry into the United States, or to do so as a drug mule because
they lack the money to pay a human smuggling syndicate. While there is substantial
fear in many quarters in the United States that a more open border would lead to
a “flood” of immigrants that would damage the United States in irreparable ways,
much of this is fueled not by fact, but by racialized fear. The evidence, in contrast,
suggests that the flow of immigrants into the United States would self-regulate in
pace with the U.S. labor market (Massey, 2012). Decriminalization of drugs would
significantly reduce the profits, and hence the willingness to risk dangerous crossings
for drug smugglers. The reduction in both unauthorized border crossing and drug
smuggling would enable reduced border militarization and more efficient border
enforcement targeted at those who pose genuine risks to the United States.
Immigration reform, in addition to reducing the need for immigrant hope-
fuls to cross into the United States without authorization, should be designed to
meet our fourth goal of eliminating attrition through enforcement as a policy goal
and basis for state or federal law. Immigrants living in the United States, whether
documented or undocumented, should be able to conduct ordinary life without
the constant fear and subsequent bodily and social harms caused by current attrition
through enforcement laws. While it is unlikely that state or federal policies will
extend all the benefits enjoyed by citizens and legal residents to those who are in
the country without legal permission, it is both unwise and wrong to aggressively
seek to deny the undocumented basic human rights to free mobility, health care,
education and the right to work. These rights are inalienable under the Universal
Declaration of Human Rights, which by treaty is also U.S. law. Consequently,
attrition through enforcement laws designed to deny these rights is state crime
under both national and international law. Enforcement laws should be removed
from federal and state statutes.
Since the re-election of Barack Obama in 2012 with wide support from Latino
voters, there has been much talk about immigration reform. Unfortunately, most
proposals to date rely on increasing border militarization as the prerequisite for nor-
malizing the lives of undocumented immigrants in the United States and creating
wider, legal pathways for immigrants to entry the country (Nowicki and González,
2013). It is our hope that, as this process moves forward, attrition through enforce-
ment will be recognized as a fundamental violation of basic rights and that attempt-
ing to seal the U.S.-Mexico border will be seen for the fools’ errand that it is. Doing
so would lead toward a reduction in state victimization of the undocumented and
the saving of billions of dollars in militarization costs. Failing to do so will result in
an intensification of state crimes against the undocumented and additional waste
of public monies that could be far better spent to address the nation’s real social
problems. Hopefully, policy makers will choose reduced victimization and finan-
cial savings rather than wasted money and more state-authored harm.
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7
“DEATH FLIES DOWN”
The bombing of civilians and the
paradox of international law
Ronald C. Kramer and Amanda Marie Smith
Introduction
You press a button and death flies down. One second, the bomb hanging harmlessly
in your racks, completely under your control. The next it is hurtling down through
the air and nothing in your power can revoke what you have done . . . How can
there be writhing, mangled bodies? How can this air around you be filled with unseen
projectiles? It is like listening to a radio account of battle on the other side of the earth.
It is too far away, too separated to hold reality.
(Charles Lindbergh, quoted in Tanaka, 2009: 1)
As the famed aviator Charles Lindbergh (who also flew combat missions in the
Pacific theatre during World War II) noted, when a bomber pilot presses the but-
ton, death does indeed fly down, and the pilot remains remote from the destruc-
tion. And as the history of bombing reveals, the victim at the other end is more
likely than with any other instrument of war to be a noncombatant or a civilian
(Lindqvist, 2000). The purpose of this chapter is to examine this form of victimiza-
tion from a criminological perspective.
The aerial bombardment of civilians by military organizations is a type of state
crime; a criminal act that has claimed millions of victims since the origins of flight
in the early years of the twentieth century. Bombing civilians is considered both a
“moral crime” (Grayling, 2006) and a legal offense because it is behavior by state
(military) officials, acting on behalf of the state, which violates the “long-standing
and widespread” moral principle and international legal norm of “noncombatant
immunity” (Conway-Lanz, 2006: 2). Hugo Slim (2008: 1) refers to this precept
as “the civilian ethic in war.” This important normative principle is found in “just
war” theory, where “noncombatants have a kind of sacred immunity” (Fiala, 2008:
7), as well as in the legal rules of International Humanitarian Law (IHL), the laws of
war (Maogoto, 2004; Byers, 2005; McCormack and Durham, 2009).
“Death flies down”: the bombing of civilians 111
These particular substantive laws, which date back to the American Civil War
(Witt, 2012) and the Hague and Geneva conventions of the late nineteenth and
early twentieth centuries (Slye and Van Schaack, 2009), cover both the deliberate
targeting of civilians (area, terror or morale bombing), as well as the use of either
indiscriminate (failing to distinguish between legitimate military objectives and
civilian objects) or disproportionate (out of proportion to the military objective)
force found with some forms of so-called “precision” bombing (Messerschmidt,
1992; McCormack and Durham, 2009). Violations of the legal rules found in IHL
by state officials constitute “war crimes” and have been the subject of criminologi-
cal inquiry (Kramer, 2010a; 2010b; Kramer and Kauzlarich, 2011).
It is international law that defines and helps us to “see” civilians who are bombed
from the air as “victims,” individuals who have experienced a “blameworthy harm”
(Agnew, 2011). The paradox, however, is that while these laws provide substantive
concepts and categories for possible legal definition and action (not to mention an
epistemological framework for criminological analysis), they ultimately fail to pro-
vide protection and legal recourse for those who are victimized by the state crime
of bombing civilians. This chapter examines this paradox, particularly with regard
to bombing campaigns carried out by the United States of America.
A short history of the aerial bombardment of civilians

Any history of aerial bombardment must necessarily focus on the central role of
the United States of America. As we will document, while the United States is
not the only, or even the first state to bomb from the air, no country has used this
instrument of warfare more frequently or intensively than the U.S. Starting with
the strategic bombing campaigns during World War II that ended with the drop-
ping of the atomic bombs on Hiroshima and Nagasaki, and continuing during the
postwar conflicts in Korea, Vietnam, Iraq and now with the use of drones in the so-
called “war on terror,” the United States has bombed more civilians than any other
country in the world.1 These military actions and state crimes must be understood
within the context of the United States pursuit of empire and its accompanying
cultural narratives such as American exceptionalism and the myth of the frontier
(Tirman, 2011; Kramer, 2012). And these bombing campaigns must also be placed
against the background of other U.S. military engagements that harmed noncom-
batants and civilians earlier in American history.
Empire, American exceptionalism and state crime victimization

The United States has been an imperial project from its earliest years (Ferguson,
2004; Anderson and Cayton, 2005; Nugent, 2008), and this imperialism is a strong
determining structural factor in the U.S. propensity to commit state crimes (Iadi-
cola, 2010; Kramer, 2012). Furthermore, these crimes are almost always rational-
ized within a broad, historical, cultural narrative often referred to as American
exceptionalism (Fiala, 2008; Hodgson, 2009; Tirman, 2011).
112 Ronald C. Kramer and Amanda Marie Smith
Nugent (2008) argues that the United States has actually created three empires
during its history. The first form of empire building involved continental expan-
sion, from 1782 to 1853. Then came the creation of an offshore empire, from
the 1850s to 1917, in the form of territorial acquisitions and formal colonies. The
third empire did not involve the acquisition of territory per se, but the extension
of American political, economic and military power around the world. According
to Nugent (2008), this “new, virtual-global empire” (p. 306), which was “only
embryonically evident during the interwar years of 1918–1939” (p. 306), emerged
most dramatically after World War II, particularly during the Cold War. While
the first two eras resulted in much state crime victimization, it is during this third
period of expansion that we witness the rise of air power and the bombing cam-
paigns that result in civilian casualties.
The three historic American empires described by Nugent (2008) have all rested
not only on an “ideology of expansion” (p. xvi) but also on the cultural myths of
the “frontier” and a related American exceptionalism that served to justify that
expansion and the violent criminal actions that accompanied it at each stage. Dur-
ing the first two periods of American expansion, the U.S. government engaged in a
number of state actions and military operations that resulted in the deaths of thou-
sands of innocent people. These included enslavement of Africans, the genocide
of American Indians and expropriation of Native lands in the name of “manifest
destiny,” claiming North and South America as an exclusive American sphere of
influence (the Monroe Doctrine), expansionist war with Mexico, an imperialist
war against Spain and the brutal colonial occupation of the Philippines.
The United States would abandon its brief experiment with formal coloniza-
tion in the second period as too economically and politically costly. Instead, a form
of what William Appleman Williams (1959) termed “Open Door” imperialism
developed. This involved the strategy of controlling without owning, and became
the basic design of American foreign policy in the twentieth century. As it rose to
ever greater power after World War I and then World War II, the United States
developed a self-image as a “reluctant superpower,” a key theme within American
exceptionalism that claims that the U.S. involves itself in world affairs only under
duress, and then always for selfless reasons (Bacevich, 2002). President Woodrow
Wilson’s famous claim that the United States must enter the First World War
because “The world must be made safe for democracy” exemplifies this narrative
theme in action. Such “idealism” would continue to inform American foreign
policy for the rest of the twentieth century and on into the next, setting the stage
for future interventions, wars and state crime victimization.
The rise of air power, Guernica and World War II

As soon as humans took to the air, they realized the military potential in flight. Gre-
nades and other harmful objects were first dropped on enemies from hot-air bal-
loons in the late nineteenth century (Tanaka, 2009). According to Sven Lindqvist
(2000: 1), “The first bomb dropped from an airplane exploded in an oasis outside
Tripoli on November 1, 1911 . . . It was Lieutenant Giulio Cavotti who leaned out
of his delicate monoplane and dropped the bomb – a Danish Hassen hand grenade.”
This bombing took place in an imperial effort by the Italian military to conquer
Turkish North Africa. In the early part of the twentieth century other European
colonial powers, particularly Great Britain, would also use the indiscriminate aerial
bombing of civilians as a tool to attempt to control rebellious colonial subjects in
the Middle East, India and South Africa (Tanaka, 2009).
The aerial bombing of civilians also took place during the Great War (1914–18).
German planes struck first, bombing Paris in August 1914. By the end of that year,
the Allies were responding in kind by bombing German territories. Although aerial
bombing was not used nearly as extensively during World War I as it would be in
the coming war, it still took a toll. As Tanaka (2009: 2) points out: “By the time
World War I ended in 1918, both sides had engaged in indiscriminate bombing,
killing or injuring several thousand civilians.”
During the interwar years in Europe there was a significant amount of social
anxiety among various publics about the potential death and destruction that could
result from massive aerial bombardment in future wars; a dread that found forceful
expression in some of the art and literature of the period (Patterson, 2007). The
experience of the bombing campaigns during World War I, where the weakening
of civilian morale had begun to emerge as a purpose of city bombing, also sparked
an effort to draft some international rules for aerial warfare. In 1923 a commission
of jurists from Great Britain, France, Italy, the Netherlands, the United States and
Japan met at The Hague and drafted a 62-article code covering various aspects of
waging war from the air (Terry, 1975). The draft Hague Rules of Aerial Warfare
were never adopted, but they evince a growing concern for protecting civilians and
noncombatants from aerial bombardment.
The mounting concern about the issue of bombing civilians exploded into inter-
national rage in 1937 with the bombing of the ancient Basque (Euskadi) town of
Guernica (Gernika) during the Spanish Civil War. Guernica was not the first time
that civilians had been bombed from the air, of course, but, as Patterson (2007: 17)
observes: “It was the first time that a completely unmilitarised, undefended, ordi-
nary civilian town in Europe had been subjected to this sort of devastating attack
from the air.” The purpose of the bombing was to break the will of the Basque
people and eliminate their “appetite for resistance” to General Francisco Franco’s
Nationalist insurgents (Graham 2005: 71). The attack, however, was labeled as
“criminal” by a wide variety of social audiences worldwide at the time. As Eng-
lehardt (2008a: 2) points out: “The self-evident barbarism of the event – the first
massively publicized bombing of a civilian population – caused international hor-
ror. It was news across the planet.” Patterson (2007: 38) has observed that: “Many
attacks since then, including the ones we have grown used to seeing in Iraq and the
Middle East in recent years, have been on such a scale that Guernica’s fate seems
almost insignificant by comparison. But it’s almost impossible to overestimate the
outrage it caused in 1937.” The global outcry stemmed as much from what the
attack presaged, as from the actual damage inflicted. As Kurlansky (1999: 200)
notes: “The world was horrified – outraged at the ruthless massacre of unarmed
civilians but also terrified at its first glimpse of the warfare of the future.”
In that same year, 1937, Japan took the next major step by systematically bomb-
ing the coastal cities of China. The ferocious Japanese assault “took the scale of
aerial bombardment to a new level” (Bess, 2006: 90) and killed thousands. As Bess
(2006: 90) notes: “From around the world, the chorus of outraged condemnation
of the Japanese reached unprecedentedly high levels.” But, despite the international
outrage over Guernica and the attacks on China, within a decade the terror bomb-
ing of civilian populations, often referred to as area or strategic bombing, became
both commonplace and morally acceptable to many of these same political leaders
and publics.
This “normalization” of the bombing of civilians took place within the context
of the massive violence of the global human catastrophe that was World War II
(Kramer, 2010a). At the outset of the war in 1939, U.S. President Franklin Roo-
sevelt issued an appeal to Great Britain, France and Germany to refrain from the
aerial bombardment of civilian populations. Roosevelt declared that, “The ruthless
bombing from the air of civilians in unfortified centers of population during the
course of hostilities . . . has sickened the hearts of every civilized man and woman,
and has profoundly shocked the conscience of humanity” (quoted in Markusen and
Kopf, 1995: 151). And at first, both Britain and Germany did refrain from bombing
civilians. However, as Tanaka (2009: 2) observes, “in a repeat scenario, both sides
deliberately increased their revenge bombing of civilian quarters in major cities fol-
lowing inaccurate bombings of military targets.”
The wartime erosion of social and moral restraints on the state crime of bomb-
ing civilians was evidenced on all sides; and by the end of the war normative
constraints on the terror bombing of cities had almost completely collapsed. The
blitz of London, the attack on Rotterdam, the firebombing of Hamburg, Dresden
and Tokyo, the atomic attacks on Hiroshima and Nagasaki, all would be burned
into the collective memory of those who had experienced the war. According
to Schaffer (1985: 3), the area bombing of civilians in Germany and Japan by the
Allied nations, in particular, wrought “a revolution in the morality of warfare.” A
conservative estimate is that the Allied strategic bombing campaigns killed 305,000
civilians and wounded 780,000 in Germany, while in Japan some 330,000 civilians
died and another 476,000 were injured2 (Tirman, 2011: 55).
The aerial bombardment of civilian populations in urban areas during World
War II has been examined by numerous scholars (Schaffer, 1985; 2009; Sherry,
1987; 1995; 2009; Markusen and Kopf, 1995; Pape, 1996; Biddle, 2002; Falk, 2004;
Selden, 2004; 2009; Bess, 2006; Conway-Lanz, 2006; Grayling, 2006; Tanaka and
Young, 2009). Most of them concur with the assertion that “deliberately mounting
military attacks on civilian populations, in order to cause terror and indiscriminate
death among them, is at the least, a moral crime (Grayling, 2006: 4). Bess character-
izes these bombings, often carried out with incendiary substances such as thermite
or napalm, as atrocities. Selden and Falk each define them as a form of state terrorism.
While much attention is given to the use of atomic weapons against Hiroshima
and Nagasaki, and deservedly so, those acts cannot be analyzed separately from the
aerial bombing of civilians in cities that preceded them. According to Selden (2004:
30), the atomic attacks simply “marked an additional cruel step in erasing the com-
batant/noncombatant distinction.”
The nadir of the strategic bombing campaigns of World War II was the use of
atomic weapons against Japan. The basic facts concerning the atomic bombings of
Hiroshima and Nagasaki are clear. On August 6, 1945, at 8:15 in the morning, the
Enola Gay, a Superfortress B-29 bomber plane piloted by Paul Tibbets, dropped
a 5-ton uranium-235 atomic weapon above the Shima Hospital in Hiroshima, a
Japanese city of some 350,000 people. The explosion of “Little Boy,” as the bomb
was called by the U.S. military, completely destroyed the city. Between 70,000
and 100, 000 people died in the blast. Others would continue to die from radiation
sickness and other bomb-related causes for years. The final death toll is estimated to
have been around 200,000. Three days after the bombing of Hiroshima, another B-
29, Bock’s Car, piloted by Charles W. Sweeny, dropped a plutonium bomb called
“Fat Man” over Nagasaki, Japan, a city of about 270,000, killing between 40,000
and 70,000 people. The final toll of the Nagasaki bombing is estimated to have
been around 140,000 dead. The vast majority of those who died in the two atomic
bombings were civilian noncombatants.
While these facts seem clear, the social meanings given to them vary tremen-
dously. The political, military, moral and legal interpretations of the atomic bomb-
ings of Hiroshima and Nagasaki are, to this day, bitterly contested. One historian,
Michael Bess (2006), has concisely summarized most of the core issues involved in
these controversies with a series of basic questions concerning the decision to drop
the atomic bomb. While all of his questions are important, we will simply note
several different and prior questions: Was the use of atomic weapons against Japan
illegal? Was the use of the bomb a war crime and a crime against humanity?
According to Kramer and Kauzlarich (2011), the answers are yes. The atomic
bombings were objectively illegal, a war crime, because they violated the rules
and principles of IHL that existed in 1945. The leading authority on this point,
according to most legal scholars, is the Shimoda case. In his classic appraisal of Shi-
moda, Falk (1965) clearly summarizes the principal reasons the court gave for its
decision that the attacks were illegal. According to Falk (1965: 770), the Japanese
court based its ruling of the illegality of the atomic attacks on the following legal
documents: The St. Petersburg Declaration (1868); the Hague Conventions on the
Law and Customs of Land Warfare (1899 and 1907); the Declaration Prohibiting
Aerial Bombardment (1907); the Treaty of Five Countries Concerning Subma-
rines and Poisonous Gases (1922); the Hague Draft Rules of Air Warfare (1923);
and the Protocol Prohibiting the Use of Asphyxiating, Poisonous or Other Gases
(1925). These international legal rules for the conduct of warfare were codified
and promulgated by the United States government itself in the War Department’s
Field Manual 27-10, entitled Rules of Land Warfare, which was issued on October 4,
1940 (and amended on November 15, 1944). As Boyle (2002) has argued, the prin-
ciples of international law specified in Field Manual 27-10 were binding on U.S.
officials throughout World War II, and thus prohibited the use of atomic weapons
against Japan. Therefore, “all U.S. civilian government officials and military offic-
ers who ordered or knowingly participated in the atomic bombings of Hiroshima
and Nagasaki could have been (and still can be) lawfully punished as war criminals”
(Boyle, 2002: 73). And as Falk (2008: 42) notes “the unavoidable legal conclu-
sion [is] that these attacks remain unacknowledged crimes against humanity of the
greatest magnitude. The use of the atomic bomb in World War II was not merely
a violation of the laws of war . . . but was also a criminal act of the greatest severity
for which the perpetrators were given impunity.”
In sum, during the course of World War II social definitions and cultural man-
dates concerning the terror bombing of cities began to change and the moral con-
straints on this illegal practice almost completely collapsed in just a few years of
what came to be called “total war” (Markusen and Kopf, 1995; Conway-Lanz,
2006; Patterson, 2007). Once “normalized,” that is, culturally approved, this form
of state terrorism, the “most barbaric style of warfare imaginable” (Englehardt,
2008b: 161), would continue as a significant part of American warfare right up to
the present. As Selden (2009: 93) observes: “The strategy of killing noncombatants
through airpower runs like a red line from the bombings of 1944–45 through the
Korean and Indochinese wars to the Gulf, Afghanistan and Iraq wars.”
The post-World War II era: air war in Korea and Vietnam

While isolationist sentiments at home had stymied Wilson’s vision for a new politi-
cal and legal world order after World War I, World War II provided the United
States with new opportunities for various forms of empire building. As the war
progressed and it became clear that the U.S. would be able to exercise hegem-
onic power in the postwar era, American political leaders began to plan for the
construction of new global institutions that would greatly advance the country’s
dominance. As Zinn (1980: 414) points out: “Before the war was over, the admin-
istration was planning the outlines of the new international economic order, based
on partnership between government and business.” There were two great inter-
related challenges to the American imperial project in the post-World War II era:
the threat of independent nationalism and the Cold War with the Soviet Union.
Both would fuel state criminality on the part of the United States and its client
states. U.S. planners were concerned that “radical and nationalistic regimes” more
responsive to popular pressures for immediate improvement in the living standards
of the masses than advancing the interests of foreign capital could become a “virus”
infecting other countries and threatening the “overall framework of order” that the
leaders of the corporate state in Washington had constructed (Chomsky, 2003).
The Soviet Union was accused of frequently provoking or providing assistance to
these nationalistic movements. Thus, the U.S. military and the new Central Intelli-
gence Agency, in direct violation of international law, engaged in dozens of foreign
interventions around the world to overthrow such “threatening” governments or
prop up friendly repressive client states that would serve American economic and
geo-political interests (Blum, 2004; Kinzer, 2006). This is the political context
within which the United States would find itself engaged in a “police action” in
Korea between 1950 and 1953 and an undeclared war on Vietnam starting in the
early 1960s and continuing until 1975. In both conflicts the U.S. would inflict
massive death and suffering on the civilian populations, on the ground and from
the air. Korea is often referred to as “the forgotten war,” but as Bruce Cumings
(2010: xviii) notes: “Least known to Americans is how appallingly dirty this war
was, with a sordid history of civilian slaughters . . .” And while the Vietnam War
polarized the country, few realized “the stunning scale of civilian suffering in Viet-
nam” as revealed in Nick Turse’s (2013: 6) exposé, Kill Anything that Moves: The
Real American War in Vietnam.
In both the Korean and Vietnam wars the United States applied massive amounts
of air power. In this we can see that the normalization of the practice of bombing
civilians that emerged during World War II continued to exert an enormous influ-
ence. Three years of bombing reduced Korea, North and South, to a “shambles”
(Zinn, 1980: 481), and led to the deaths of thousands of civilians. According to
historian Marilyn Young (2009: 157), the total tonnage of all airborne ordnance
during the Korean War was 698,000, with an overall death toll of between 2 and
3 million. Bruce Cumings (2010) cites similar figures: 635,000 tons of bombs, not
counting 32,557 tons of napalm (p. 159); and 3 million Koreans dead, at least half
of them civilians (p. 243). The exact number killed by air strikes is not known.
And when this level of conventional bombing did not end the conflict, President
Eisenhower resorted to the threat to use nuclear weapons (Kramer and Kauzlarich,
2011).
In Vietnam, from Lyndon Johnson’s Operation Rolling Thunder in 1965 to
Richard Nixon’s Christmas-time bombing of the North in 1972, called by James
Carroll (2004: 150) “terror bombing pure and simple,” the use of air power was
also extreme. According to Young (2009: 157), some 8 million tons of bombs were
dropped on Indochina during the Vietnam War (compared to 2 million tons in
all of World War II), and the total death toll was between 2 and 4 million. Turse
(2013: 13) cites several studies that put the death toll in Vietnam at 3 to 3.8 million,
with perhaps 2 million civilian deaths. As with the Korean War, it is impossible to
pinpoint the number of civilian deaths due to aerial bombardment in Vietnam, but
the figure must be in the tens of thousands. And once again, when the conven-
tional bombing of civilians did not resolve the conflict, the President of the United
States, Richard Nixon, illegally threatened to use nuclear weapons (Kramer and
Kauzlarich, 2011).
The post-Cold War era and the wars against Iraq

The fall of the Berlin Wall in 1989 and the collapse of the Soviet Union in 1991
brought the Cold War to an end, presenting the U.S. with a new set of opportuni-
ties and challenges. With its imperial rival out of the way and American military
supremacy unparalleled, the “unipolar moment,” as some called it (Krauthammer,
1991), had arrived. Neoliberal economic goals and U.S. imperial domination never
seemed more realizable. American military power, already normalized as a primary
tool to achieve global hegemony, could now be used with even more political
impunity, whether it was punishing small neighbors such as Panama and Grenada
for their failure to fall in line with U.S. interests (both of which involved the use of
air power that killed a significant number of civilians), or using Iraq’s 1990 incur-
sion into Kuwait as a pretext to establish a more overt and permanent U.S. military
presence in the oil-rich Persian Gulf region (Klare, 2004; Bacevich, 2005).
Still, the end of the Cold War produced a sharp struggle between rival factions
of the ruling elite over how to capitalize on the opportunities offered by the fall
of the Soviet Union, while deflecting threats presented by the possibility of a new
isolationism. Both George H.W. Bush and Bill Clinton supported a globalist and
internationalist approach, often referred to as “open door imperialism” (Williams,
1959; Bacevich, 2002). These presidents viewed America as a global leader that
should use its economic and military power to ensure openness and integration in
the world economic system (Bacevich, 2002). Thus, their foreign policy remained
consistent with the system of informal imperialism practiced by the United States
since the beginning of the twentieth century, stressing global economic integration
through free trade and democracy (Williams, 1959; Dorrien, 2004). But neither
of these presidents shied away from the use of military violence (often bombing
campaigns that victimized thousands of civilians), in violation of international law,
when deemed necessary to accomplish American imperial designs as the Gulf War
of 1991 (and its aftermath) and the bombing campaigns in the former Yugoslavia
in the late 1990s demonstrate. In January of 1991, the United States and a coalition
of other nations launched a military attack on Iraq in an effort to force Saddam
Hussein to withdraw from Kuwait, which he had invaded in August of 1990.
The 42-day assault included a massive missile and bombing campaign. There were
thousands of aerial sorties a day against Iraq and more than 177 million pounds
of bombs were dropped (Blum, 2000: 159). According to Ramsey Clark (1992:
59), former U.S. Attorney General, “The bombing was a deadly, calculated, and
deeply immoral strategy to bring Iraq to its knees by destroying the essential facili-
ties and support systems of the entire society.” A Commission of Inquiry for the
International War Crimes Tribunal, led by Clark (1992: 83), estimated that more
than 150,000 Iraqi civilians died as a result of the U.S. assault, with at least 25,000
dead as a direct result of bombing. Even after the ceasefire, the U.S. continued to
fly its planes over Iraq on an almost daily basis, occasionally unleashing bombs and
missiles, killing or wounding thousands of additional civilians (Blum, 2000). This
practice would continue right up to the second Iraq War in 2003. President Bill
Clinton would also be responsible for several deadly bombing campaigns. In Iraq,
he continued the crippling sanctions, the no-flight zones, as well as the use of air
power over the country that his predecessor had started. The destruction of the
Iraqi infrastructure and the deadly effects of the postwar sanctions are estimated to
have resulted in the deaths of over 500,000 children under the age of five alone
(Tirman, 2011). When Saddam Hussein was thought to be interfering with the
UN weapons inspection team operating in Iraq following the ceasefire, Clinton

initiated Operation Desert Fox, a three-day bombing campaign on Iraqi targets in
December of 1998 that resulted in over 200 civilian deaths (Tirman, 2011). Clin-
ton also ordered a deadly NATO bombing campaign against Serbia in March of
1999, justifying it as a “humanitarian intervention” to protect ethnic Albanians in
Kosovo (Chomsky, 2012). However, as Blum (2000: 166) points out: “In actuality,
the forced deportations of large numbers of people did not begin until a few days
after the bombing began, and was clearly a reaction to it.”
The selection of George W. Bush as president in 2000 brought a more uni-
lateralist neoconservative group to power, with more than 20 neocons and hard-
line nationalists being awarded high-ranking positions in the new administration
(Dorrien, 2004). This group argued for a more unilateral and militarist revision of
American imperialism, in some ways a return to earlier models of neo-colonial-
ism. The September 11, 2001 terrorist attacks then presented this faction with
the “catalyzing event” it needed to transform its imperialist and militarist agenda
into actual policy. As a result, the George W. Bush administration became one
of the most lawless in U.S. history, perpetrating a veritable state crime wave. By
invading Afghanistan in 2001 and Iraq in 2003 in violation of the UN Charter,
Bush engaged in two illegal wars of aggression, the “supreme international crime”
according to the Nuremberg Tribunal (Kramer and Michalowski, 2005; Kramer,
Michalowski and Rothe, 2005). Torture and other war crimes were also commit-
ted (Welch, 2009).
The chain of events set into motion by the invasion and occupation of Iraq in
2003 resulted in the deaths of over 1 million Iraqis, based on extrapolations from
studies carried out by researchers from Johns Hopkins University and published in
the highly respected British medical journal Lancet (Roberts, et. al., 2004; Burnham
et al., 2006; Schwartz, 2008). In addition, over 4 million people have been dis-
placed from their homes and the social and economic infrastructure of Iraq has been
devastated. It should be noted that the war on Iraq started with the well-publicized
“shock and awe” bombing of Baghdad on March 20, 2003, and a heavy application
of air power that led up to the ensuing ground war. This bombing campaign started
the “tidal wave” of death, destruction and misery that would wash over the Iraqi
people in the years to come (Schwartz, 2008).
The use of drones

The invasions of Afghanistan and Iraq were part of a larger military campaign
that President George W. Bush called “the war on terror.” Increasingly this “war”
is being fought from the air by Remotely Piloted Air Systems (RPAS) – also called
unmanned aerial vehicles (UAVs) or drones. These devices are used by the U.S.
military for a variety of purposes, most notably for surveillance of and targeted
strikes against al-Qaeda and associated groups (Benjamin, 2012) in the greater
Middle East region, particularly in Pakistan. The United States has been operat-
ing two drone programs in tandem since the beginning of the Iraq War. The U.S.
military officially operates one drone program, while the Central Intelligence
Agency (C.I.A. [unofficially]) operates the other (Mayer, 2009; Turse, 2012).
Drones strikes appear to violate a number of international laws: the UN Charter
prohibition against the use of violence in international relations; IHL prohibitions
against the use of indiscriminate and disproportionate military force; and inter-
national laws that ban extrajudicial executions, assassinations or targeted killing
(Horton, 2009; Alston, 2010).
The United States has been using drones to target alleged terrorists and members
of Al-Qaeda in Pakistan since 2004. With the election of President Obama in 2008,
these drone strikes began to intensify. Obama ordered his first targeted drone attack
on January 23, 2009, just three days after his inauguration (Benjamin, 2012). Accord-
ing to the Washington Post, one of several databases that report drone strikes, the
United States has launched 334 such attacks in Pakistan since 2004, with 282 of these
strikes taking place since Obama took office (Washington Post, 2012). The military
asserts that, as required by IHL, drone strikes are targeted and precise and therefore
limit collateral damage. But these attacks are based on limited intelligence and are
often aimed at clusters of people, with the inevitable result of civilian casualties.
Both drone programs have been responsible for the deaths of civilians; however,
determining which program is responsible for each individual incident is difficult
because media reports are lacking and the United States does not count civilian
casualties (Alston, 2010; Woods, 2012). Of the two drone programs, the U.S.
military drone program appears to be more transparent in its dealings. There are
three main databases that track the use of drones for targeted strikes in Pakistan by
the United States: the Washington Post (WP), the Long War Journal (LWJ), and the
New American Foundation (NAF). Each of these databases relies on news reports
as its primary source of information.
The data contained in each of the three reports varies, but the trends remain the
same. According to the WP (2012), there have been 336 drone strikes in Pakistan
between 2004 and December 1, 2012. The WP database does not specifically count
the number of people killed, but it does link to a news source for each attack. The
Bureau of Investigative Journalism (BIJ), an independent non-profit organization
based in the United Kingdom, denied the WP access to its database when it was
determined that the Post was planning to strip all casualty data from the report
(Woods, 2012).
The LWJ (2012) provides much more specific information about individual
drone strikes and aggregates the number of deaths including civilians. However,
the website notes that counting causalities is difficult, due to the lack of reporters in
Pakistan. According to the LWJ (2012), there have been a total of 321 drone strikes
in Pakistan between 2004 and December 1, 2012. It estimates (2012) that 2,437
“leaders and operatives from Taliban, Al Qaeda, and extremist groups” have been
killed between 2006 and 2012 in these strikes. According to the LWJ, there have
been 139 civilian deaths (2012).
The database created by the New American Foundation, “The Year of the
Drone” (2012), appears to be the most complete account of U.S. drone strikes in
Pakistan. The NAF estimates that 337 drone attacks have taken place in Pakistan
between 2004 and October 24, 2012 and it estimates that between 1,932 and 3,176
people have died in the drone attacks, with 18 to 23 percent of those killed being
civilians (NAF, 2012).
The three U.S. databases seem to agree that there have been more than 320
drone strikes in Pakistan since 2004. What appears to be problematic is the count-
ing of casualties, particularly civilian deaths. The LWJ (2012) reports that 139 civil-
ians have died in drone strikes since 2006, while the NAF (2012) reports that
between 257 and 310 civilians have died since 2004. Even after comparing the two
databases for the same years (2008 to 2012), the NAF database still shows a greater
number of civilian deaths.
Part of the problem is the reliance on news sources for information about who
has died. As Benjamin (2012: 103) observes, “Some reports rely on local sources
and untrained journalists working with news agencies. Others rely on Pakistani and
US intelligence agencies, which tend to label every kill a militant.” The United
States labels every death a “militant kill,” a testimony to its “discretion and preci-
sion,” as John O. Brennan, President Obama’s top counterterrorism advisor, put it
(NAF, 2012:103). However, the International Human Rights and Conflict Reso-
lution Clinic at Stanford Law School and Global Justice Clinic at New York Uni-
versity School of Law (2012: x) study notes that “the US government counts all
adult males killed by strikes as ‘militants,’ absent exonerating evidence.” Defining
every male who is killed as a militant certainly does not add credibility to the data
provided by the U.S. government.
The BIJ (n.d.) reports that there have been 352 drone strikes in Pakistan since
2004. This is consistent with the U.S. database reports. However, the BIJ differs in
its casualty counts. The BIJ reports that the total number of individuals killed dur-
ing drone strikes in Pakistan is between 2,590 and 3,383. Of those killed, between
472 and 885 were civilians and 176 children. Unlike the U.S. databases, the BIJ
reports the number of injured during drone strikes, between 1,255 and 1,408 indi-
viduals. This data indicates that the number of persons harmed by the United States
during drone attacks is far larger than reported by the U.S. databases (BIJ, n.d.).
Woods (2012) suggests that the discrepancy in the reporting of casualties is politi-
cally motivated, as the United States does not want the public to know the extent
of the harm caused.
The paradox of international law

The history recounted above demonstrates that the state crime of bombing civilians
has been a recurrent and deadly feature of modern warfare since the early twentieth
century. Hundreds of thousands of people have been victimized by this form of
criminality. This history also shows that while the United States was not the first
country to bomb from the air, the U.S. has bombed more civilians than other
country in the course of its various imperial wars, including the first use of atomic
weapons in 1945. While IHL (the laws of war) predates the rise of air power and
the aerial bombing of civilians, there have been some attempts to use this form of
public international law to both conceptualize and respond to these state crimes.
The paradox of IHL is that, while these laws provide a framework of substantive
legal concepts and categories that allow us to “see” the bombing of civilians as a
“crime” and identify the “victims,” it ultimately fails to provide protection and legal
recourse for those who are victimized by the state crime of bombing civilians.
IHL and the bombing of civilians

Public international law consists of both customary state practices and specific trea-
ties that govern the relations among states. Under international law there exist legal
rules that focus on both the use of force and recourse to war in international affairs
(jus ad bellum), and rules that regulate the conduct of combatants in armed conflicts
(jus in bello). The first attempt to constrain the conduct of war by law was the
Lieber Code, developed by Francis Lieber during the American Civil War (Witt,
2012). In Europe, the Geneva Convention for the Amelioration of the Condition
of the Wounded in Armies in the Field in 1864; the creation of the International
Red Cross; and the two Hague peace conferences in 1899 and 1907 started the
international community down the path toward the development of IHL. The
original objective of the two Hague Conventions was to limit the use of force in
international affairs but, as William Slomanson (2003: 485) points out, “Once the
conference participants realized that there would be no international agreement to
eliminate war, the central theme became how to conduct it.”
The catastrophic Great War of 1914–18 (World War I) shattered Europe, the
Middle East and other parts of the world and brought renewed efforts to outlaw
war. The most significant result of the Paris Peace Conference following the “war
to end all wars” was a new organization of states called the League of Nations. The
Covenant of the League of Nations did not prohibit war or the use of military force,
but it did attempt to reduce their likelihood through “structures of consultation and
arbitration.” As noted above, the experience of aerial bombing during the war also
led to the creation of a commission of jurists that met in 1923 at The Hague to draft
Rules of Aerial Warfare (Terry, 1975). These rules were never adopted, and future
efforts to constrain aerial bombardment would attempt to utilize the more general
concepts in IHL concerning noncombatant immunity
The creation of the International Military Tribunal at Nuremberg to hold per-
sonally liable senior Nazi officials accused of crimes against peace, crimes against
humanity and war crimes during World War II was a transformative moment for
international law. The constituting treaty for the trials, the Charter for the Nurem-
berg Military Tribunal, was agreed to on August 8, 1945 by the victorious Allied
powers. The principles contained in the Charter were later approved by the UN
General Assembly (Resolution 95-1), which explicitly incorporated them into
international law.
While the UN and Nuremberg Charters outlawed the recourse to war, the four
Geneva Conventions of 1949 advanced international law concerning how wars are
to be fought. The Geneva Conventions (and the additional protocols of 1977) are
an important part of IHL. As noted above, this body of international law, which
dates back to the nineteenth century, requires parties to an armed conflict to protect
civilians and noncombatants, limits the means or methods that are permissible dur-
ing warfare and sets out the rules that govern the behavior of occupying forces.
While the existence of these laws is an impressive achievement, allowing us to
conceptualize the bombing of civilians as war crimes and to see the victimization
these crimes cause, the historical record demonstrates that international law has
actually failed to prevent these crimes from occurring or to hold the guilty parties
accountable. The laws of war and other forms of international law as they relate
to the bombing of civilians have failed for three primary reasons: 1) the failure to
enforce the laws, particularly after World War II, 2) the elastic concept of mili-
tary necessity contained in IHL and 3) the undemocratic structure of the United
Nations Security Council.
The absence of enforcement and the legitimation of violence

The primary problem with public international law in general, and international
criminal law specifically, is the lack of any effective enforcement mechanism
(Rothe, 2009). While a plethora of substantive laws and legal standards have been
promulgated over the years (particularly with regard to conduct during war), states
have been unwilling to give up enough sovereignty to allow for any formal pro-
cedural controls or coercive enforcement tools to be created which may be able
to effectively punish or deter violations of these standards. Absent any effective
formal legal controls, the compelling drive to achieve nationalistic and imperialistic
goals during the course of a war through the effective and available means of ter-
ror bombing has not been deterred by the mere existence of the substantive legal
principle of noncombatant immunity.
While no effective coercive enforcement mechanisms existed under interna-
tional law at the time of World War II, following the hostilities there was an
important effort to hold states and political and military leaders to account for
their actions during the conflict that constituted “war crimes.” The International
Military Tribunals at Nuremberg and Tokyo prosecuted, convicted and then sanc-
tioned a number of German and Japanese government officials for “criminal” acts
they had allegedly engaged in during the war. Space does not permit an extended
discussion of these international tribunals but it is important to note that the aerial
bombardment of civilian populations, whether to destroy their morale or for any
other purpose, was not one of the war crimes that were prosecuted. As Jochnick
and Normand (1994: 89) point out: “In order to avoid condemning Allied as well
Axis conduct, the war crimes tribunal left the most devastating forms of warfare
unpunished.” They go on to argue that the decision not to include terror bomb-
ing among the war crimes to be prosecuted at Nuremberg or Tokyo helped to
legitimate this behavior: “By leaving morale bombing and other attacks on civilians
unchallenged, the Tribunal conferred legal legitimacy on such practices” (Jochnick
and Normand, 1994: 91). Thus, even the most significant effort in history to actu-
ally enforce the laws of war, along with its undeniably important humanitarian
accomplishments in advancing the legal categories of “crimes against peace” and
“crimes against humanity,” failed to even define the intentional bombing of civil-
ians as a crime, let alone punish the behavior or attempt to deter it in the future
with formal sanctions. Thus, the legitimacy conferred upon terror bombing by the
International Military Tribunals helped to normalize the practice and ensure that it
would be a normal and acceptable method of warfare in the future.
The elastic concept of military necessity

But alongside the failure to control terror bombing due to a lack of formal enforce-
ment mechanisms, there is an even more fundamental way that IHL legitimizes
state violence and contributes to its normalization. As Jochnick and Normand
(1994: 56) have convincingly argued, the laws of war provide “unwarranted legiti-
macy” and “humanitarian cover” for violence during wartime due to the way in
which states have created and codified an elastic definition of “military necessity”
within the codes and conventions that constitute this body of law. Through overly
broad and unchallenged conceptions of military necessity and military objectives,
international law has legitimized and facilitated state practices during war such as
terror bombing. During World War II the Allies did not openly violate the laws of
war as much as simply interpret them in such a way as to justify and “legalize” their
resort to the aerial bombardment of civilian populations in Germany and Japan.
Jochnick and Normand (1994: 89) conclude that:
In both World Wars the laws of war played analogous roles. In each conflict
the law served as a powerful rhetorical device to reassure anxious publics that
the conflict would be confined within just limitations. The First and Second
World Wars both saw the law subverted to the dictates of battle, reduced to
a propaganda battlefield where belligerents traded attacks and counterattacks.
And in the end, the law ultimately failed to protect civilians from horrifying
new weapons and tactics. The scope of permissible violence expanded under
a flexible definition of military objective and military necessity that eventu-
ally, and predictably, justified relentless terror bombing campaigns.
Furthermore, military necessity continues to be used as justification for drone

strikes. By selecting targets believed to be terrorists, the United States suggests that
it is militarily necessary to eliminate potential threats – not actual threats.
The flawed structure of the United Nations

The third reason for the failure of international law to prevent or control the state
crime of bombing civilians since World War II is the undemocratic structure of
the United Nations Security Council. The fatal flaw is the fact that that the five
permanent members of the Council hold the veto power, which prevents the
Council from taking enforcement actions that the “Great Powers,” particularly the
United States, do not want to be taken. According to Paul Kennedy (2006: 76), this
is the giant conundrum of the UN: “Everyone agrees that the present structure is
flawed; but a consensus on how to fix it remains out of reach.”
State officials, acting on behalf of the state, have generally been free to engage in
illegal and socially harmful behavior throughout history, due to political impunity
and legal immunity. In contrast to ordinary powerless street criminals, powerful
state and corporate offenders have mostly been immune to criminal prosecution
and penalties. As Welch (2009: 4) observes: “It is because of these states of impu-
nity that crimes of power appear to have few bounds.” Throughout the twentieth
century, however, due to developments in international criminal law, particularly
after World War II, both political impunity and legal immunity for the criminal
acts of state officials began to break down. As we have already noted, the first
significant move toward accountability for state crimes came with the creation of
the International Military Tribunals at Nuremberg and Tokyo and the subsequent
trials of German and Japanese war criminals. Even though these state officials were
not prosecuted for the crime of bombing civilians, these tribunals still established
an important general precedent for holding future political and military leaders
accountable for crimes against peace, crimes against humanity and war crimes.
The other significant event after World War II that would eventually contribute
to the erosion of political impunity and legal immunity for state crimes was the crea-
tion of the United Nations. The UN Charter, which would codify important aspects
of public international law, the creation of the Security Council and the development
of the International Court of Justice (World Court), imperfect as they were and dis-
torted by Cold War politics, all represented a step in the direction of greater account-
ability for states and their leaders with regard to violations of international criminal
law. At the very least, when combined with the four Geneva Conventions of 1949
and other postwar legal efforts, a vision of a new liberal, rules-based international
system was placed before the international political community (Sands, 2005). But
all of this is undermined by the flawed structure of the Security Council. The veto
power prevents the Council from being able to take the necessary actions when the
“Great Powers” are involved in a war of aggression or a war crime such as the bomb-
ing of civilians. While a strong defender of the United Nations overall, scholar Paul
Kennedy (2006: 11) acknowledges the consequences of this great flaw, here speaking
of the inability of the UN to prevent the illegal U.S. invasion of Iraq in 2003:
But the blunt fact was that a Great Power, indeed the strongest nation of all,
could not be constrained from unilateral action by international organization
and opinion; it therefore could do things that other, lesser powers could not,
a further confirmation that not all member states were equal – as if they ever
had been. The United Nations will never be in a position to block “warmak-
ing” by a determined Great Power, not, that is, without the strong chance
of another great war.
Conclusion
As we consider the history of the bombing of civilians and the paradox of inter-
national law in relationship to this state crime, perhaps we should reflect, as Ray
Michalowski (2013: 210) suggests, on Audre Lorde’s observation that “the master’s
tools will never dismantle the master’s house.” Can international law and interna-
tional institutions confront the crimes of powerful states, such as the aerial bom-
bardment of civilians? Some Marxist scholars dispute the notion that any progress
toward the greater accountability of the state officials of capitalist societies has
occurred, arguing that international legal norms have always been complicit with
the violence of empires (Mieville, 2006). Likewise, Michalowski (2013: 210) asks
the question: “Can a legal apparatus designed by powerful capitalist states address
the social harms, particularly the systemic social harms, committed by those states?”
The answer is, probably not. International law may help “remodel the master’s
house,” as perhaps Nuremberg and the UN have done; however, that still leaves
“intact the basic structure that guarantees relative immunity for powerful states”
(Michalowski, 2013: 210). Effective resistance to state crimes like the bombing of
civilians by the United States will not come from the current structures of interna-
tional law. Effective resistance will only come from structural and cultural changes;
that is, from challenges to the U.S. empire, the normalizing narrative of American
exceptionalism and the political immunity provided by current international legal
institutions (Kramer, 2012).
As Michalowski (2013: 221) astutely points out: “It can only come from mass
social movements that demand not simply after-the-fact punishment of state crimi-
nals, but rather a recalibration of the political and economic structures that facilitate
systematic state crime.” Unless such structural changes occur, death will continue
to fly down on the victims of aerial bombardment.
Notes
1 For a complete list of all bombings carried out by the U.S. up to 2000, see Blum (2000).
Only the major bombing campaigns will be discussed in this section.
2 For an excellent discussion of the difficulties involved in attempting to “count” the
number of dead and wounded in a war setting, see Chapter 10, titled “Counting: A
Single Death Is a Tragedy, a Million Deaths Are a Statistic,” in Tirman (2011).
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HarperCollins.
8
STATE CRIME AND THE
RE-VICTIMIZATION OF
DISPLACED POPULATIONS
The case of Haiti
Introduction
There has been, and continues to be, significant and growing criminological atten-
tion to the issue of crimes perpetrated by the state (Barak 1990; Barak 1991; Chamb-
liss 1989; Green and Ward 2004; Kramer and Michalowski 2006; Mullins and Rothe
2008a; Ross and Rothe 2008; Rothe 2009b), especially as it relates to the resulting
social harm and injury that often occurs on a grand scale (Friedrichs 2000; Hamm
2007; Kauzlarich and Kramer 1998; Kramer 1995; Lenning 2007; Lenning and
Brightman 2009; Mullins and Rothe, 2008a, 2008b; Rothe 2009b). Scholars have
analyzed motivating factors and opportunities that have illustrated the complicity of
state actors in the commission of crimes such as the genocide (Mullins 2009; Mullins
and Rothe 2007, 2008a; Rothe 2009b), war crimes (Buss 2009; Rothe and Ross
2010; Welch 2009), crimes against humanity (Cencich 2009; Mullins and Rothe
2008a; Rothe 2009b), as well as many human rights abuses that occur during conflict
and post-conflict situations (Barak 1990; Lenning 2007; Rothe 2010a). What are less
often mentioned are patterns of state victimization that increase the susceptibility of
already vulnerable populations to future harm. It is the long-term impacts of these
actions or inactions on these populations that creates risk for future victimization.
One such population that is at particular risk for future harm is those displaced from
their communities and homes; populations that then become internally displaced.
The internal displacement of large numbers of people is most often associated
with conflict and post-conflict situations (Ahoua, Tamrat, Duroch, Grais, and
Brown 2006; Çelik 2005; Crisp 2000; Gebre-Wold and Masson 2002; Hagan,
Rymond-Richmond and Parker 2005; Mullins and Rothe 2008b), but it can occur
due to “political, economic, and environmental reasons in both developed, and
developing states” (Çelik 2005: 974). This covers a wide range of situations includ-
ing “situations of generalized violence, violations of human rights or natural and/or
human-made disasters” (Cohen and Deng 1998:18). These populations are vul-
nerable not only because they find themselves in makeshift or temporary housing
camps for extended periods of time, but because their status as internally displaced
persons (IDPs) makes them the responsibility of their home state, and ineligible to
receive the protections under international law afforded to populations that cross
into other states – those classified as refugees (Çelik 2005; Cohen 1999). Therefore,
in many instances IDPs are dependent on their state to meet their basic humani-
tarian needs, through the provision of clean water, sanitation, shelter, and food,
as well as to protect them from future harm (Global Protection Cluster Working
Group 2006). Here I argue the very nature of this state dependency and the lesser
protections afforded by their classification as IDPs increases the vulnerability of
these populations for future harm resulting from states’ unwillingness to act. To
illustrate both direct and indirect state victimizations of IDP populations, as they
relate to the state’s responsibility to act, examples will be drawn from the case of
the 2010 earthquake that occurred in Haiti, where two years later approximately
519,000 people continue to live in as many as 758 make-shift camps in the coun-
try’s capital, Port-au-Prince (Harvard Humanitarian Initiative 2010).
Criminology, state crime and re-victimization
State responsibility to act and internally displaced persons

The status of a state as a criminal actor, although receiving considerably more atten-
tion over the last twenty years (Barak 1990; Barak 1991; Chambliss 1989; Kau-
zlarich and Kramer 1998; Rothe 2009b, 2009b; Rothe et al. 2009), still remains
an understudied focus within the field of criminology (Rothe and Ross 2008;
Rothe et al. 2009). Although there has been a considerable expansion in the lit-
erature on the role of the state as a perpetrator of social and/or criminal harm
(Barak 1991; Chambliss 1989; Green and Ward 2004; Kramer 1992, 1995; Kramer
and Michalowski 2006; Lenning 2007; Lenning and Brightman 2009; Mullins and
Rothe 2008a; Rothe 2009a; Rothe and Collins 2011a; Rothe, Muzzatti and Mul-
lins 2006; Rothe and Ross 2010), as well as focus on the role of both domestic and
international institutions of control (Iadicola 2008; Kauzlarich, Kramer and Smith
1992; Kramer and Michalowski 2005; Parmentier 2003; Ross and Rothe 2008;
Rothe 2010b; Rothe and Collins 2011b; Rothe and Mullins 2006), there still
remains considerable debate over what constitutes a “state crime,” i.e. social harm
perspectives, legalistic definitions, and those employing a human rights framework
(Barak 1990; Green and Ward 2004; Passas and Goodwin 2004; Schwendinger
and Schwendinger 1975). However, as indicated by Faust and Kauzlarich (2008:
86) and irrespective of the definitional perspective being advanced, there is general
agreement amongst state crime scholars that a state crime includes both state acts
and omissions on the provision that it “generates harm in violation of an explicit
trust or duty between states, states and its [ sic] citizens, or states and citizens of other
jurisdictions.”
State crime and displaced populations 133
As argued by Kauzlarich, Mullins, and Matthews (2003), state crime includes

omissions to act which occur when there is a clear mandate in place which requires
a state to act in order to prevent unsafe and dangerous conditions which the state
then disregards. This is reinforced by Kauzlarich, Matthews, and Miller (2002:
249), who argue that a state’s negligence, nonfeasance or failure to carry out an
implied trust or duty constitutes a state crime even if it is not contained within a
legal instrument, provided it “fall[s] under general expectations of a state’s part of
a social contract.” This responsibility of the state to act, and its resulting criminal-
ity when it does not, is something that has already been applied to state responses
to natural disasters (Faust and Kauzlarich 2008; Green and Ward 2004), as well
as the treatment of refugee populations (Pickering 2001, 2005; Weber 2002).
For example, through an analysis of Hurricane Katrina, the storm that hit the US
Gulf Coast on August 29, 2005, Faust and Kauzlarich (2008) situate the resulting
human suffering in the state crime literature, classifying the lack of government
preparedness and response as a state crime of omission. They demonstrate that
the aforementioned explicit trust or duty between a state and its citizens was vio-
lated, as the “normative expected governmental duties to protect life and prop-
erty, address known and profound hazards to communities, and to responsively
and humanely deliver services after catastrophes” (Faust and Kauzlarich 2008: 98)
were inadequate, breaching the social contract between state and citizen. In a fur-
ther study, Pickering (2005) argues for a refocusing of criminological inquiry away
from the criminalization of those afforded “refugee” status, towards the actions
and inactions of the hosting state.
Drawing on international humanitarian and customary law, Pickering (2005)
argues that a state crime framework allows for the behaviors of the refugee’s state
of origin to be reconceptualized as forms of persecution that result from state-
organizational deviance as well as human rights violations. This reconceptualization
also impacts decisions of inclusion in the refugee’s host state (i.e. who is determined
to be a refugee and the protections they are afforded), which allows for the chal-
lenging of state refugee policies, otherwise considered legitimate, that lead to the
re-victimization of vulnerable populations. Although the focus here is not refugees,
the treatment of IDPs can be similarly construed, as there are internationally rec-
ognized principles that can be used for the basis for framing the treatment of IDPs
within a state crime framework.
Guiding principles on the treatment of IDPs

In a 1998 report to the UN Commission on Human Rights, the advisor to the Sec-
retary-General on internally displaced people, provided guidelines, often referred
to as Guiding Principles on Internal Displacement (GPID), on the rights and pro-
tections that should be guaranteed to IDPs (United Nations Economic and Social
Council 1998). Although the report and the principles contained therein are not
a legal instrument, they have gained considerable legitimacy in the international
political community, and an “increasing number of States, United Nations (UN)
agencies and regional and non-governmental organisations are applying them as a

standard” (United Nations General Assembly 2008: para 10). Similarly, in recogni-
tion of the potential for human rights abuses in the case of natural disasters, in June
2006 the Inter-Agency Standing Committee (IASC)1 adopted Operational Guide-
lines on Protecting Persons in Natural Disasters (Inter-Agency Standing Com-
mittee 2008). Recognizing that human rights abuses can occur following natural
disasters, and that “nation authorities are often unaware of the relevance of human
rights norms in the context of natural disasters” (Inter-Agency Standing Commit-
tee 2008: 2), a human rights-centered approach was advocated for responding to
natural disasters, as well as in pre-disaster planning. Both the GPID and the IASC
Operational Guidelines are based on international humanitarian and human rights
laws, as well as laws that guide responses to refugees, including what Hathaway
(1991), in reference to refugee law, refers to as three different orders of rights/
violations that amount to persecution. Hathaway’s (1991) first order of rights/
violations includes those set out in the Universal Declaration of Human Rights
(UDHR), as well as rights contained in several covenants that have general state
agreement in all instances (see the International Covenant on Economic, Social and
Cultural Rights (ICESCR), and the International Covenant on Civil and Political
Rights (ICCPR)). For example, some of the rights included here are the right to
the protection of life, security, and physical integrity (UDHR Article 3, Article
5; CCPR Article 6; the Geneva Convention 1949). Second-order rights/viola-
tions are also included in the UDHR and ICCPR, but under certain conditions
states are permitted to divert from them, one of the situations being in the case of
a national emergency. Examples of these rights include the right to privacy, pro-
tection from arbitrary arrest, internal movement, and exit from and return to the
country (Pickering 2001). Third-order rights/violations are those that states agree
to uphold provided there are the resources to do so, provided the decision to do so
is non-discriminatory in their administration. For example, these rights include the
right to food, medical care, and clothing.
As indicated by Pickering (2005), violation of these rights in the treatment of
refugees can be construed within a state crime framework, as violations of such fall
within Green and Ward’s (2000: 111) human rights definition of state crime:
Implicit in the human rights based definition of state crime is the inclusion
not only of active violations of human rights, but also of passive failures to
protect individuals against violations of their rights by other individuals or
corporations. There is a continuum here between crimes that are plainly
instigated and condoned by state agencies (such as the activities of anti-inde-
pendence militias in East Timor), through the “capture” of regulatory agen-
cies by the bodies they are supposed to regulate, through negligent policing
that reflects institutionalised race, class, or gender bias, to errors of judgement
that may be apparent only in hindsight. Such definitional problems should
not, however, preclude the recognition of crimes of complicity or omission
as an important dimension of state crime.
Although the focus here is not refugees, and despite IDPs being exempt from many
of the legal protections under international human rights law, the GPID on the
treatment of IDPs as well as the IASC Operational Guidelines can be construed as
evidence of a social contract between states and their citizenry; expressly including
IDPs. This is supported within both sets of guidelines, explicitly stating that the
primary responsibility for the welfare of IDPs belongs to the state. For example,
Principle 3 of the GPID expressly states that “National authorities have the primary
duty and responsibility to provide protection and humanitarian assistance to inter-
nally displaced persons within their jurisdiction” (United Nations Economic and
Social Council 1998), and the IASC Operational Guidelines provides that “States
have the primary duty and responsibility to provide assistance to persons affected
by natural disasters and to protect their human rights” (Inter-Agency Standing
Committee 2008: 17). This provides the requisite mandate requiring state action
to protect its citizenry.
As argued by Kauzlarich et al. (2002), independent of whether it is codified into
law, if a state is negligent, or fails to act out an implied trust or duty, this meets
the criteria of a state crime of omission. Applying this argument to the case of
Haiti demonstrates that not only is the state inadequate in fulfilling the duties and
responsibilities afforded IDPs in the GPID and IASC Operation Guidelines, but it
also results in this population suffering further harm. Although my focus here is the
reconceptualizing of state responsibilities towards IDPs as a form of state crime, my
primary focus is not the immediate state response (or lack thereof) to the earthquake
in Haiti, as research on the aftermath of disasters clearly indicates that the housing
and shelter immediately constructed is often primitive. Based on its necessity and
immediacy, these conditions are considered acceptable by the residents, and by the
state, based on the belief they are short term (Bates and Peacock 1987; Kasapoglu
and Ecevit 2003; Oliver-Smith 1986). The focus here, therefore, is the conditions
that last for extended periods of time when emergency shelter and internal displace-
ment becomes a more permanent reality, and the chances of human rights abuses
increase (Inter-Agency Standing Committee 2008). This is especially relevant to
the case of Haiti, as since the 2010 earthquake the conditions within the hundreds
of makeshift camps have not improved, and in some cases they have worsened.
Applying a frame of state crimes of omission and re-victimi-

zation to the case of Haiti
General conditions in Haiti’s informal settlements

On January 12, 2010, a 7.0 magnitude earthquake shook the country of Haiti,
resulting in considerable destruction and the loss of human life (Amnesty Interna-
tional 2011b; Oxfam International 2012). Large areas of the country’s capital city,
Port au Prince, were destroyed, with approximately 230,000 people killed, 300,000
people injured (Amnesty International 2011a, 2011b) and 280,000 buildings crum-
bled into rubble, including 15 of the country’s ministry buildings, 1,500 schools
and 50 hospitals (Amnesty International 2011b). Those people who survived were
made homeless, displaced from their communities, which were covered in approxi-
mately 10 million cubic meters of debris (Oxfam International 2012). Government
buildings crumbled in the earthquake, destroying the city’s infrastructure, including
police departments, courts, administrative buildings, hospitals and clinics, as well
as schools. The destruction of the government infrastructure has severely dimin-
ished the government’s ability to respond to emergencies, increased its dependency
on international assistance (Amnesty International 2011a, 2011b; Human Rights
Watch 2012b; Liguori 2010), and provided the conditions to facilitate the victimiza-
tion of IDPs as a form of state crime. In the immediate aftermath of the earthquake
it is estimated that almost two million people were without shelter, resulting in an
“unprecedented humanitarian crisis” (Amnesty International 2011b). In the follow-
ing section the specific examples of the conditions faced in Haiti will be analyzed,
beginning with the general conditions within the informal settlements.
The international humanitarian response to the earthquake was immediate;
however, aid was slow to reach some of the worst impacted areas (Amnesty Inter-
national 2011b), and as a result settlements were erected where survivors could find
space. Nearly one year after the earthquake, over one million IDPs were still liv-
ing in more than 1,300 different camps, and today, although the number has been
significantly reduced, 519,000 people are still residing in the 758 camps that remain
(Oxfam International 2012). These informal settlements had, and still do have,
thousands of people crammed together, sleeping in public spaces of just one square
meter or less (Liguori 2010). In a February 2010 visit by Human Rights Watch,
workers found that the shelters were constructed of wooden poles and cloth, with
very few families having the waterproof tarpaulins necessary to guard against the
weather. More than a month after the disaster, Human Rights Watch concluded
that none of the camps it visited had been erected in accordance with the inter-
national standards such as those set out by the IASC Operational Guidelines, and
although international non-governmental organizations (NGOs) were distributing
shelter materials, they had reached less than 10 percent of the population in need of
shelter, with only 17,000 family-size tents and 87,000 tarpaulins having been dis-
persed (Levine 2010) to almost two million people. By May 2011, over a year after
the initial disaster, more than one million displaced persons were living without
access to adequate shelter, as the government’s construction of transitional shelters
and longer-term housing was slow, due to the lack of suitable land made available
by the Haitian authorities (Amnesty International 2011b).
Much of the requisite land needed to house IDPs is privately owned, and
although international law permits the government to acquire the land in circum-
stances like these, provided there is due process and adequate compensation, the
Haitian government has done little to negotiate land acquisitions (Levine 2010).
In Amnesty International’s 2011 annual report, the NGO reported that there was
still no clear governmental plan for the relocation of IDPs into long-term housing,
and despite the state’s obligation and the humanitarian need, state authorities had
begun to evict IDPs from private land. For example, in March 2010, Haitian police
officers evicted 10,000 people from the Sylvio Cator stadium, an area that had
served as an informal settlement for over a year. The police did not have a court
order, and there was no alternative housing offered to the residents; instead the
police entered the settlement at night and began to destroy the shelters, forcing the
earthquake survivors to leave (Amnesty International, 2011b).
On July 18, 2011 a second eviction occurred of 514 displaced families from the
parking lot of the same site, many of the families having already been evicted from
the stadium just over a year previously. The families residing in the parking lot of
the stadium were approached on July 12 by the then Mayor, Jean-Yves Jason, who
entered the camp and told them they had to leave by July 15. They were given the
choice of leaving voluntarily, and by doing so they would receive a voucher for
approximately $250 for their relocation, or being forcibly removed (Snyder and
Bellevue 2011). This breached protections under Principle 18, of the GPID, which
states that IDPs have the right to “an adequate standard of living” (United Nations
Economic and Social Council 1998: Principle 18), including having access to basic
shelter. Additionally, Principle 28 provides that the state has the “primary duty and
responsibility to establish conditions, as well as provide the means, which allow
internally displaced persons to return voluntarily, in safety and with dignity, to their
homes or places of habitual residence, or to resettle voluntarily in another part of
the country” (United Nations Economic and Social Council 1998). Despite this,
IDPs continue to be evicted by government actors from the shelters, without due
process, often forcibly, and with no alternative housing being provided or offered
by the government (Amnesty International 2012).
Additionally, Principle 18 of the GPID provides that national authorities should
provide access to “essential medical services and sanitation” (United Nations Eco-
nomic and Social Council 1998). This is supported by the IASC Operational
Guideline (B.2.1) that states that after the initial emergency phase of the disaster
has expired, adequate sanitation and essential health services must be provided. In a
February 2010 visit to some of the camps, Human Rights Watch reported that all
the camps it visited were extremely overcrowded, and the majority had no show-
ers or toilets, and therefore no sanitation facilities at all (Levine 2010). There is no
piped sewer system in Haiti, and in Port au Prince waste and sewage are disposed of
together in one central landfill, creating conditions that facilitate the spread of dis-
ease. This is worsened by the fact that a year after the earthquake occurred, many of
the owners of the land in which the informal settlements have been erected would
not let aid agencies construct latrines. Instead, portable facilities had to be brought
in, a more expensive option than constructing them on site, and therefore limiting
the number provided. Additionally, these facilities then have to be emptied regu-
larly, further increasing the potential for the spread of disease (Morrow 2011). Due
to the conditions of overcrowding in the camps and the lack of sanitation, there
was an outbreak of cholera in October 2010. The cholera outbreak spread rapidly
throughout the whole country, and now Haiti has the world’s highest infection
rate (Oxfam International 2012), resulting in 7,400 deaths and more than 500,000
people being infected (Knox 2012b).
Despite the spread of the disease, initial skepticism on the part of the World
Health Organization (WHO) and the Pan-American Health Organization (PAHO)
about the effectiveness of vaccinations influenced the Haitian government’s deci-
sion not to provide these to the people, especially considering that to provide
universal access to the vaccine would require 20 million doses. Convinced that the
vaccine could be effective, advocates pressed the WHO, the PAHO, and the Hai-
tian government to reconsider its decision, and in June 2011 the WHO changed
its view on the matter and supported a campaign for the use of the vaccine in some
of the worst impacted areas. This campaign, however, was delayed even further by
the Haitian government, based on false reports that the vaccine was experimen-
tal and needed to be approved by a national ethics committee before it could be
administered. During this bureaucratic hold-up, 100,000 Haitians had registered
for the vaccine, the vaccine was available and waiting in coolers, and medical staff
had been trained and were ready to administer it (Knox 2012a). Meanwhile, the
number of people infected continued to increase, as did the death toll. Not only
was this in clear violation of Principle 18, of the GPID, but it was also in violation
of Principle 19, which provides that “all wounded and sick internally displaced
persons as well as those with disabilities shall receive to the fullest extent practicable
and with the least possible delay, the medical care and attention they require” and
that “special attention should also be given to the prevention of contagious and
infectious diseases” (United Nations Economic and Social Council 1998).
Also included under Principle 18 of the GPID is access to “essential food and
potable water” (United Nations Economic and Social Council 1998). This is ech-
oed in the IASC Operational Guidelines, which asserts that “adequate” goods and
services means “they are (i) available, (ii) accessible, (iii) acceptable, and (iv) adapt-
able” (adaptable making reference to the flexibility of the services in that they
fit the changing environment of a post-disaster situation) (Inter-Agency Standing
Committee 2008: 32–3). In February 2010, the United Nations Office for the
Coordination of Humanitarian Affairs (OCA), and the World Food Program
(WFP) launched a food surge program in efforts to get a two-week rice ration
to families in the camp. Although 400,000 families received the food, due to the
distribution sites being located long distances away from the camps, and poor secu-
rity, the majority of those living in the settlements did not receive it. Particularly
vulnerable populations, such as the elderly, disabled, and pregnant women were
not able to participate in the food program, as they were unable to walk the long
distances necessary to collect the food, and to carry a 25 kg bag of rice back with
them (Levine 2010). Additionally, the program utilized food vouchers, and gov-
ernment officials handing out the coupons were found to have been withholding
or selling them. This is contrary to the provision in Principle 18 of the GPID,
which provides that access to food and water should be provided safely to all people
without discrimination. The IASC Operational Guidelines also, when food and
water is limited, emphasizes the need to prioritize the provision of food and services
so that those most in need receive them first (Inter-Agency Standing Committee
2008). In an effort to ensure women’s access to food, camp management and food
distribution centers have implemented programs where food coupons are provided
exclusively to women. However, there has been little effort to ensure that security
is afforded to these women as they leave the food distribution centers, making them
particularly vulnerable to violent victimization.
Security and gendered violence

There have been numerous reports from NGOs drawing attention to the serious
lack of security in the informal settlements, a predicament that still exists today
(Amnesty International 2011a, 2011b, 2011c; Human Rights Watch 2011; Klasing
2011, 2012). This has left those residing within the camps, especially women and
children, particularly vulnerable to criminal victimization. Amnesty International
(2011a: 2) reports:
there is no security for the women and girls in the camps. They feel abandoned
and vulnerable to being attacked. Armed gangs attack at will; safe in the knowl-
edge that there is still little prospect that they will be brought to justice.
Reports from non-governmental organizations such as Human Rights Watch

and Amnesty International have clearly expressed concern over the increased level
of gender-based violence perpetrated in the camps, with more than 250 rapes
reported in the first 150 days following the quake (Amnesty International 2011a).
Particularly vulnerable to the attacks are Haiti’s poorest populations (i.e. those
forced to live in the informal settlements), such as women, children, the elderly,
and the disabled (Oxfam International 2012). Further exacerbating the risk of vic-
timization for those most vulnerable are the conditions within the camps; insecu-
rity, overcrowding, and inadequate sanitation (Amnesty International 2010). For
example, young girls who are forced to bathe in public are grabbed and pinched by
boys, and women have been abducted from their shelters and assaulted (Amnesty
International 2011a). One victim, a 14-year-old girl named Machou, reported her
experience as she walked to the toilet:
A boy came in after me and opened the door. He gagged me with his hand
and did what he wanted to do . . . He hit me. He punched me. I didn’t go to
the police because I don’t know the boy, it wouldn’t help. I feel really sad all
the time . . . I’m afraid it will happen again.
(Amnesty International 2011c)
Most reports indicate that the perpetrators are armed men, or youth that roam
the camps late at night (Liguori 2010). Suzie, a young mother of two, reported
that while she was residing in a makeshift shelter with her two sons and a friend,
they were attacked in the early hours of the morning. Both Suzie and her friend
were blindfolded and raped in front of their children by a gang of men who forced
their way into the shelter (Amnesty International 2011c). Suzie’s experience is not
uncharacteristic for many women and girls forced to live in the settlements, having
been displaced by the earthquake, as the risk for gender-based violence has been
found to increase with the amount of time spent in emergency housing (Human
Rights in Natural Disasters 2008).
Haiti’s national laws are supposed to protect women and children against gen-
dered violence. However, the criminalization of gender-based violence in Haiti
is relatively new, with rape being defined as a crime as recently as 2005 (Klasing
2012). Irrespective of the national laws, and because of their status as IDPs, this
population should be afforded protection under the GPID. The GPID clearly indi-
cate that IDPs should be protected from acts of violence, including “rape, mutila-
tion, torture, cruel, inhuman, or degrading treatment” as well as “gender-specific
violence” (United Nations Economic and Social Council 1998: Principle 11). The
lack of a security or police presence in the camps provides no visible deterrence to
would-be perpetrators. For example, in 2010 Human Rights Watch reported on
its visit to 15 different camps in Port au Prince and the area of Jacmel. Despite the
camps housing a combined total of 35,000 people, it found that there was a vis-
ible absence of security or government officers at the camps. In addition, Human
Rights Watch workers were unable to ascertain who had the formal responsibil-
ity for security in the settlements (Human Rights Watch 2010). When victims
do contact the police they are often told that they cannot do anything (Amnesty
International 2011c). Even when international watch groups have intervened and
contacted the police directly on behalf of a victim, local police have not responded
to investigate the crimes. In addition, the destruction caused by the earthquake
destroyed the extra-judicial reporting mechanisms such as the women’s shelters
and groups, with many of their offices ruined in the disaster (Levine 2010). The
destruction of the state’s infrastructure including the police, courts, and gendered
violence-specific services for female victims, may explain the initial inaction and
denial on the part of the Haitian government (Liguori 2010). However, the gov-
ernment cannot continue to rely on the breakdown of government institutions as
a reason for its non-response, as there has been, and continues to be, significant
attention from NGOs on the issue.
Significant attention was brought to the issue of gender-based violence in the
settlements by NGOs less than two months after the earthquake occurred, urging
the Haitian government to incorporate responding to violence against women in its
humanitarian response to the disaster (Amnesty International 2010). Despite this, the
Haitian government, reliant on statements from the self-organized management of
the informal settlements that sexual violence was not a problem, denied it was hap-
pening, and did little to address the issue and provide assistance to victims (Liguori
2010). The problem of gendered violence extends beyond the initial victimization
to include the consequences, which include physical injuries, disability, sexually
transmitted disease, unwanted pregnancies, reproductive health issues, unsafe abor-
tions, mental health issues such as depression, as well as deaths (Klasing 2011).
The security of the camps has not been a priority in the response, as indicated by
a 2010 letter to the United Nations Security Council from Human Rights Watch,
where attention was drawn to the use of personnel from the Haitian National
Police Force, the United Nations Stabilization Mission in Haiti (MINUSTAH),
and UN Police to protect humanitarian convoys and sites used for the distribution
of food, but not for security in the camps (Levine 2010). The failure of the state to
act creates a culture of impunity for the perpetrators, as well as fostering an environ-
ment of danger and violence for many of the most vulnerable victims of the natural
disaster – women and children. As indicated by a woman named Dina, a resident of
a camp in Port au Prince: “Where I live, I am afraid. We don’t have a good life; it
is not a good area . . . We are afraid. We can be raped at any moment . . . We are
forced to live in misery” (Amnesty International 2011a: 5).
Often discussed in connection with gendered violence, is the issue of trafficking.
The potential problem of trafficking of children gained national attention when, in
January 2010, a group of ten self-proclaimed missionaries were intercepted by Hai-
tian authorities attempting to remove 33 children aged between two months and
twelve years from Haiti without documentation (Amnesty International 2011b).
The earthquake has left thousands of children orphaned or separated from their
families, and vulnerable to harm. This is particularly concerning, considering the
national laws and the cultural practice of “restavec,” which affords little protec-
tion to children (Padgett and Ghosh 2010). Restavec is a Creole term for children
who stay and work for another family, but according to the Restavec Children
Foundation many of these children are given away or sold by their families as a
means of survival (United Nations Office for the Coordination of Humanitarian
Affairs (OCHA) 2004), 80 percent of them being female. Many of these children
are denied access to education, unpaid, and physically and sexually abused (Human
Rights Watch 2012a).
Both the GPID and the IASC Operational Guidelines explicitly protect against
indentured servitude. For example, Principle 11 of the GPID provides that “every
human being has the right to dignity and physical, mental and moral integrity,”
specifying that this includes protection from “slavery or any contemporary form of
slavery, such as sale into marriage, sexual exploitation, or forced labor of children”
(United Nations Economic and Social Council 1998). Similarly, the IASC Opera-
tional Guidelines states that
Appropriate measures should be taken as early and as quickly as possible to

protect affected populations, in particular women and boy and girl children,
against forced or compulsory labour and human trafficking or other contem-
porary forms of slavery such as sale into marriage, forced prostitution, and
sexual exploitation.
(Inter-Agency Standing Committee 2008: 23).
The United Nations Children’s Fund (UNICEF) reports that the confusion fol-
lowing the earthquake provided greater opportunities for trafficking, including
an increased number of vulnerable children and lax border control in efforts to
facilitate the movement of humanitarian aid. In addition, the continued poor
conditions within the informal settlements assist the traffickers in their intent to
recruit children, as the promise of better opportunities such as “education, a better
life, and meals” is extremely enticing (Nunan 2010).
Shortly after the earthquake, the Haitian government, along with aid workers,
did attempt to register displaced children for the purposes of either reuniting them
with family members or putting them up for adoption; however, without resolv-
ing the basic humanitarian conditions within the camps, this task is difficult. Haiti’s
then President Jean-Max Bellerive told CNN that child trafficking “is one of the
biggest problems we have” (Evans 2010). Displaced children are therefore, argu-
ably, the most vulnerable, of an already extremely vulnerable population, to further
situational victimization, and should be afforded greater protections from the state;
protections which are clearly laid out in the IASC Operational Guidelines (Inter-
Agency Standing Committee 2008) and the GPID (United Nations Economic and
Social Council 1998).
Conclusion
Drawing on the case of the 2010 Haiti earthquake and the conditions that resulted
from the internal displacement of nearly two million people, I have argued that
the responsibilities and duties of the state towards this population have not been
met. Focusing specifically on the conditions within the many informal settlements
that were spontaneously constructed in the country’s capital in the months and
years following the disaster, I have attempted to illustrate that IDPs have not been
afforded adequate humanitarian assistance or been protected from basic human
rights abuses. Evidence from international NGOs, such as Amnesty International
and Human Rights Watch, as well as from branches of the UN, suggests that
despite significant attention being drawn to issues of inadequate living conditions,
overcrowding, poor sanitation, limited access to water, food and medical services,
as well as an inherent lack of security in the camps, the response of the Haitian
authorities has been both slow, and in many instances counter to the international
standards for the treatment of displaced persons.
Instead of guarding against further re-victimizations of IDPs, the national
authorities have been complicit in their perpetration by actively condoning and
in some instances being active participants in the harms perpetrated against these
IDPs. They have done little to address poor sanitation, access to basic services
such as food and water, or to provide formal responses to the sexual victimization
of women and children, and have participated in the illegal forcible eviction of
thousands of IDPs. The responsibilities to protect IDPs are contained within the
two internationally recognized documents (the GPID and the IASC Operational
Guidelines) that had been issued and in effect prior to the disaster. These docu-
ments reaffirm that the duties and responsibilities to be afforded IDPs belongs to
the state (Inter-Agency Standing Committee 2008; United Nations Economic and
Social Council 1998), and, due to their breach, accountability for harm should
therefore also belong to the state.
These internationally recognized guidelines on the treatment of displaced per-

sons, although not legal instruments, should be treated as an international stand-
ard for the treatment of IDPs, in doing so constitute a sufficient contract between
a state and its people the violation of which can be construed as a state crime
(Kauzlarich et al. 2002). The Haitian government has neglected to fulfill many of
the protections provided for in these internationally recognized documents, and
by doing so its inaction can be re-conceptualized within a state crime framework
amounting to a state crime of omission (Faust and Kauzlarich 2008). When the
government’s inaction is situated within this frame, the numerous harms dis-
cussed above become more than just an “unfortunate consequence” of a natural
disaster, and instead can be viewed as what they truly are: the re-victimization
of an already vulnerable population through ineffective state mechanisms of pro-
tection. The state, then, through its unwillingness to effect protections against
known violations of basic human rights, can be clearly identified as the perpetra-
tor of the harm. This, as noted by Pickering (2001) in her discussion of refugees,
serves to allow for an alternative understanding of the state’s role in the treatment
of these populations. This may assist in the future of IDPs both in Haiti and
around the world, especially following a natural disaster, when the mechanisms of
protection have traditionally been weaker, and particularly as the immediate crisis
evolves into a more long-term situation, prolonging the conditions of suffering
and increasing the opportunities for human rights abuses (Inter-Agency Standing
Committee 2008).
In May 2011, Michel Martelly became President of Haiti, elected on the basis
of a campaign promising change as well as assistance for the IDPs, but despite this,
almost three years after the 2010 earthquake hit Haiti, there are still 519,000 people
residing in 758 makeshift camps, with only tents and tarpaulins for shelter (Amnesty
International 2011b). The issue of security remains pressing and the threat of gen-
dered violence still remains very real for many women and girls, and the gov-
ernment still has much to do to ensure those who have been victimized receive
the necessary criminal justice, medical, and psychological services (Human Rights
Watch 2011, 2012a; Klasing 2011). In January 2012, on the second anniversary
of the earthquake, President Martelly promised that “This year is a year when we
will really start rebuilding physically but also rebuilding the hope and the future for
the Haitian people” (Daily Mail Reporter 2012). Despite the President’s pledge,
and the continued efforts of NGOs and the international community, thousands of
IDPs continue to live in inhumane conditions – struggling to obtain the necessary
resources for survival and navigating the always pressing threat of violence – that
have become characteristic of the hundreds of camps that remain in Haiti’s urban
areas.
Acknowledgment
Special thanks to Dr. Dawn Rothe for her helpful comments and feedback on this
research.
Note
1 The Inter-Agency Standing Committee is the organization in place for the coordination
of the provision of humanitarian assistance from UN and non UN agencies (see Inter-
agency Sanding Committee 2008).
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9
VICTIMISATION DURING AND
AFTER WAR
Empirical findings from Bosnia
Stephan Parmentier and Elmar G.M. Weitekamp
Introduction
The Dayton Peace Agreements of December 1995 put an official end to the war in
Bosnia that had raged through the country since early 1992 and taken an enormous
toll on its population, infrastructure and cultural heritage. Mass murders, extraju-
dicial executions, torture, rape, illegal detention, forced displacement, looting and
destruction of religious and cultural sites were common atrocities and estimates
point to around 100,000 deaths and 2.2 million displaced people. The Agreements
divided the country into two entities: the Federation of Bosnia and Herzegovina,
inhabited predominantly by a Bosniak and Bosnian Croat population, and the
Republika Srpska, inhabited predominantly by Bosnian Serbs. They also provided
for a far-reaching intervention by the international community in both civilian and
military affairs in post-war Bosnia. This complexity continues to complicate the
Bosnian transitional justice context as well as pose big challenges for any research
about the war and post-war realities.1
Discussions about victimisation and post-conflict justice tend to be dominated
by elites – political, economic, and from civil society – both in the country con-
cerned and at the international level, and the views and expectations of the local
populations are rarely recorded, let alone taken into account. Although the last
decade has witnessed a rapid development of empirical researches conducted in
post-conflict situations and sometimes in on-going conflicts, they still remain the
exception that confirms the rule (ICTJ, 2004; ICTJ, 2006; ICTJ, 2007). Yet, in
our view population-based research provides an additional and valuable source of
information that merits serious attention.
In this chapter, we report on the findings of an empirical research carried out
by us about victimisation during and after the war in Bosnia. The core question
is to find out how people report about their victimisation and what its impact
150 Stephan Parmentier and Elmar G.M. Weitekamp
could be on their perceptions of post-conflict justice. The main objective of our

contribution is to demonstrate the value of empirical research on victimisation
and post-conflict justice with local populations, and by doing so to contribute to
a transitional justice approach “from below,” as aptly formulated by McEvoy and
McGregor (2008). For this purpose, we first briefly highlight the design of our
population-based research and then focus on the types of victimisation as reported
by the respondents.
The survey
The empirical research was conducted in June 2006 in Bosnia with the aim of
exploring what the role and applicability of restorative justice principles can be
in the process of dealing with post-conflict situations that include mass victimisa-
tion. For this purpose we collected data on the opinions and attitudes of individual
citizens of Bosnia and Herzegovina about these topics, and also included questions
about their victimisation during and after the war. The survey fitted into a large
research project carried out at the Leuven Institute of Criminology, University of
Leuven (Belgium) between 2004 and 2008 entitled ‘Mass victimisation and restora-
tive justice. In search of the position of restorative justice in an integrated approach
to mass victimisation in post-conflict situations. Case studies in Bosnia and Herze-
govina and Serbia’.
Elsewhere we have published the major findings of this survey in relation to
post-conflict justice issues in Bosnia and Serbia (Parmentier et al., 2009; Parmen-
tier et al., 2010; Parmentier and Weitekamp, 2011; Jones et al., 2012; Parmentier
and Weitekamp, 2013), but we highlight here for the first time the types and
degrees of victimisation as reported by the respondents to the survey. It should be
mentioned that the findings of this survey have been further complemented with
in-depth structured interviews which were conducted with Bosnian citizens by the
researcher in this project in November 2006. The aim of these interviews was to
collect qualitative data that could reinforce, clarify and complete the data gathered
through the questionnaire. They allowed us, in other words, to understand the
motivations of the individuals and the reasoning behind certain opinions and atti-
tudes. They also provided an opportunity to clarify certain doubts or questions that
arose from the analysis of the quantitative data.
Objectives and research design

The overall aim of this survey was to inquire into the attitudes and opinions of
individuals about the process of dealing with the past in Bosnia, with a particular
focus on the opportunities for and potential of a restorative approach to such a
process. The framework used to analyse the views and opinions of the respondents
on transitional justice was the TARR model developed by Parmentier (2003).
This model is composed by four building blocks which correspond to a number
Victimisation during and after war 151
of key issues or challenges in the process of transitional justice: seeking truth (T)
about what happened in the past, establishing forms of accountability (A) for the
perpetrators, providing reparations (R) for victims, and promoting reconciliation
(R) between former enemies. The model provides a useful framework to analyse
the various relations between two or more of the building blocks, and allows
us to examine specific institutions and mechanisms of dealing with the past in
relation to these issues. It was explicitly designed as a heuristic device to list and
discuss specific issues in post-conflict situations and has no explanatory ambitions
whatsoever. In later years, and particularly based on the data emerging from the
Bosnian and Serbian surveys, the model has been extended and now includes
three further key issues, i.e. trust building in communities and society at large,
dealing with the trauma of victims and offenders, and establishing dialogue(s)
between all sectors of society (Parmentier and Weitekamp, 2007; Weitekamp
and Parmentier, 2012).
The research method followed in this study was a self-administered quantita-
tive survey carried out by means of written questionnaires. The methodology of
this study comprised four key steps that are described at length: (1) creation of an
instrument of data gathering; (2) determining an adequate sampling method; (3)
data collection through the distribution of the questionnaire; and (4) analysis of the
data gathered.
Instrument of data gathering – the questionnaire

The instrument used for data gathering was a printed questionnaire with a total
of 38 questions, all but one closed, i.e. respondents were asked to choose one of
the possible answers presented to them in each question. The only open question
included in the survey was about the meaning of reconciliation. Among the closed
questions, some had mutually excluding answers (such as Yes, No, I don’t know);
others had multiple possible answers; and in others respondents were asked to rank
their level of agreement with given alternative answers to the formulated ques-
tion. It seemed important to include in almost all the questions the option ‘I don’t
know’, as this ensures a greater level of honesty in the results when several sensitive
or controversial questions are asked.
This questionnaire was developed by the research team in the period between
February and May 2006, on the basis of:
• surveys carried out with similar objects of study, in particular a compara-

tive study on war victimisation carried out at the Max Planck Institute for
Foreign and International Criminal Law (Kiza et al., 2006),2 and also a sur-
vey carried out by the United Nations Development Programme (2005) in
Bosnia;
• data collected during previous periods of field research in Bosnia by the
research team, mainly through semi-structured interviews with key actors in
the process of dealing with the past;
• data collected in a workshop organised by the research team in Dubrovnik

(Croatia) in May 2005 on the process of dealing with the past in the region;
• comments and suggestions by experts on quantitative research and experts in
the field of transitional justice in ex-Yugoslavia;
• comments by about 10 respondents from Bosnia who were randomly selected
to be part of the testing phase.
When it was finally distributed the questionnaire had a brief but clear explana-
tion of the purpose and future use of the data. The respondents were given a clear
assurance that their identities would be kept confidential. The respondents given
the opportunity to provide the research team with any additional information on a
blank page in the questionnaire.
Sampling method
At the time of the survey Bosnia presented particularly difficulties for researchers
in determining which sampling method to use. In fact, because there had been no
census in the country since before the war, it was methodologically not possible to
create a national representative sample.3 Because of these difficulties the research
team cannot claim that the results of this survey are representative for the popula-
tion of Bosnia and Herzegovina.
The best possible approach for the selection of the sample was to aim at a number
of respondents considered significant in most literature on research methodology,
and to determine certain criteria that, on the one hand, would match our particular
interests following the object of the survey and, on the other hand, would ensure
that there were no significant biases in the selection of the respondents. In order
to minimise the potential sampling biases we opted for a non-probability sampling
method that is recognised to have fewer risks of bias, i.e. the quota sampling method.4
This entailed that the target population – the citizens and residents of Bosnia – were
divided into subgroups or strata according to certain criteria of particular interest
given our object of study. These criteria were geographical distribution, religious
affiliation, age, and gender and they will be discussed in detail below. The advantage
of using this type of sampling method was that it ensured having among the group
of respondents specific parts of the population that we were specifically interested in,
i.e. respondents from all the different regions of the country, particular age groups,
representatives of the main religious groups, and both men and women. This sam-
pling method is commonly used when the population is heterogeneous and specific
groups can be isolated. Then, within each of these subgroups the proportion of the
sample that should belong to one or another category was determined in order to
ensure the intended diversity and the balance among the members of each subgroup.
Thus, we ensured having a similar number of male and female respondents, as well as
a similar number of respondents among the different religious groups, and so on.
The sample was determined according to the following criteria.
Geographical distribution
One of the criteria was to include in the survey individuals from all geographical
areas of Bosnia and Herzegovina, in particular from the Federation of Bosnia and
Herzegovina (divided into ten cantons), the Republic of Srpska (divided into five
regions), and the Brčko District. Our sample included citizens from cities and vil-
lages located in all of the ten cantons of the Federation of Bosnia, in all of the five
regions of Republica Srpska, and in the Brčko District.
Religion (ethnicity)
Religious affiliation in Bosnia plays an extremely crucial role in the identity, and
therefore in the opinions and attitudes, of individuals. Religious affiliation, as the
primary distinction between the different national (or ethnic) groups, is most of the
time – and until today – automatically associated with ethnicity. This correspond-
ence is of course not without problems. While there are three constituent peoples
of Bosnia whose primary distinctive feature is their religious affiliation, there are,
naturally, individuals who do not identify themselves with any of the three major
religious groups in Bosnia. Nonetheless, religion continues to be used as an indica-
tor of the ethnicity of each individual and the ‘otherisation’ of other groups (Kiza
et al., 2006), and surveys tend to ask about religion rather than ethnicity, since the
latter concept is not yet well interiorised by all individuals. Our survey followed the
same approach and thus used the question of religious affiliation in order to find out
to which ethnic group the respondents belonged.
Due to the characteristics of the war in Bosnia and Herzegovina that involved
citizens of three different ethnicities – Bosniaks (or Bosnian Muslims), Serbs and
Croats – and also because of the expected differences in perceptions, attitudes, and
opinions among people of different ethnicities, the sample included individuals
from the three different groups. In order to ensure an equal weight to each group’s
voice it was finally decided to opt for a disproportionate sample in which Bosniaks
and Serbs were underrepresented in relation to the estimated composition of the
country,5 whereas Croats were overrepresented. The aim was to have the sample
distributed into three fairly similar groups of individuals according to their religion
and, in the terms explained above, to their ethnicity.6
Age
The survey was aimed primarily at individuals involved in and/or affected by the
war when it took place. But we also wanted to analyse the opinions and attitudes of
those who in 2006 belonged to the generations that would soon occupy influential
positions in the country and have a significant impact on the route it would take.
For that reason, the main target (80 per cent) were citizens who were then between
26 and 64 years old (and who were aged between 15 and 55 at the end of the war).
We aimed for 10 per cent of the respondents to be between 18 and 25 years old
in 2006, being in university or starting a professional career, and likely to hold

relevant positions in the country in the years to come. The remaining 10 per cent
were aimed to consist of citizens who were at that moment over 65 years old.
Gender
Given that experiences during the war were significantly different according to
gender and that gender also tends to play a role in the opinions and attitudes of indi-
viduals, we opted to divide our sample into fairly equal parts according to gender.
This also reflected the estimated composition of the country at the time according
to the CIA Factbook (2006).
Access to respondents and data collection

The data for the survey was collected in the course of May and June 2006 by stu-
dents of the Faculty of Criminal Justice Sciences, University of Sarajevo, Bosnia
and Herzegovina, who all attended the course of Sociology and Criminology in
the academic year 2005/2006. The selection of the students was conducted in
the last weeks of the academic year, after the students had already learned about
the research methods used in social sciences. The main selection criterion was the
motivation of the student and his or her place of residence. A total of 67 students
from 38 cities or villages participated in the project as data collectors.
The students were first given a short lecture about the research project, its goals,
and the importance of the process of data gathering. They worked under permanent
supervision and in consultation with the researcher and the consultant from Bosnia
and Herzegovina working in this project. The data-gathering method used was a
combination of the so-called convenience and snowball methods. For reasons of con-
venience in terms of costs, resources, and also the targeted geographical distribution
of the sample, the questionnaires were distributed in the cities or villages in which
the data collectors lived, to persons fitting the selection criteria explained above.
The data collectors were asked to distribute the questionnaires to a certain number
of males and females, to persons within certain age groups and of certain religious
affiliations. In order to meet these criteria we used the snowball method whenever
necessary, i.e. the data collectors could rely on referrals by some respondents in order
to find additional respondents. Although these methods can introduce a potential
bias in the data collection, given the extremely complex socio-geographical context
of Bosnia, the lack of information on the composition and the geographical distribu-
tion of the population, and the sensitivity of the issues being surveyed, we found this
to be the most feasible and reliable method of data collection.
Each student was given a certain number of questionnaires (on average 30) and
was given the criteria for selection of respondents, e.g. which percentage of male/
female respondents they should target, of which religious affiliation, of which age,
and so on. Given the close association between religious affiliation and geographi-
cal distribution, we were able to ensure that this criterion (religious affiliation) was
met according to where the questionnaires would be distributed. Each student was
instructed to hand the questionnaires to the respondents in person, and to collect
them after a few days. The students who gathered the data were also instructed to
clarify any doubts that the respondents might have had when completing the ques-
tionnaire and to ensure that the confidentiality of the information provided was
assured. They were then asked to return the questionnaires to the research team in
Sarajevo. Using this method a total of 900 questionnaires were distributed and out
of these 855 were returned duly filled – a 94.4 per cent response rate (and a 5.6 per
cent non-response rate). This high response rate is typical of convenience sampling
methods (Bryman, 2008: 100). The individuals who refused to take part in this
study mainly gave as a justification the fact that these issues were too sensitive and
difficult to deal with, and also that they did not consider the study to be useful.
Data analysis
The data collected in the 855 questionnaires that were completed and returned
was entered by four students of the Faculty of Criminal Justice Sciences, University
of Sarajevo, who worked under the permanent supervision of and in consultation
with the methodologist, who also works at the Faculty of Criminal Justice Sciences
and who was in charge of the first stage of data analysis. This first stage consisted of
the creation of the mask in SPSS software and of several levels of analysis such as:
• univariate analysis: analysis of main socio-demographic and other variables;

• bivariate analysis: cross-tabulation of the variables reflecting main socio-demo-
graphic characteristics with other variables measuring attitudes and opinions of
the respondents, including chi-square statistic;
• multivariate analysis (step-wise regression), using as the set of predictor vari-
ables a large number of variables;
• factor analysis;
• tests of reliability of scales;
• cluster analysis.
The results of the survey in whole or in part have been discussed over the past
two years on several occasions, ranging from academic seminars and conferences
to expert meetings, all in order to collect feedback from diverse audiences and to
refine the interpretations. Presentations took place in Sarajevo, Bosnia and Herze-
govina (October 2006), Oñati, Spain (March 2007), Oxford, United Kingdom
(May 2007), Regina, Canada (June 2007), Sydney, Australia (July 2007), Leiden,
The Netherlands (February 2008), San José, Costa Rica (March 2008), Geneva,
Switzerland (June 2008), Tübingen, Germany (June 2008), The Hague, The Neth-
erlands (June 2008), Barcelona, Spain (July 2008), Edinburgh, United Kingdom
(September 2008), Canberra, Australia (September 2008), and Gothenburg, Swe-
den (July 2010). The final responsibility for the presentation and the interpretation
of the results lies solely with the authors, of course.
The final report on ‘Restoring Justice in Bosnia and Herzegovina’: Results of a popu-
lation-based survey (Valiñas et al., 2009) contains the analysis of the data, divided
into three main parts: (1) the socio-demographic structure of the sample; (2) the
respondents’ experiences relating to the war, i.e. their victimisation experiences,
their active participation in the war, and their self-perceived suffering resulting
from these experiences (during and after the war); and (3) the opinions and attitudes
of the respondents in relation to the four key issues of the TARR model: truth,
accountability, reparation, and reconciliation, and about a restorative approaches to
these issues. In the following paragraphs we report on only the first two issues.
Socio-demographic structure of the sample

First we provide a quick overview of the following characteristics of the sample:
age, gender, employment, education, religion, and membership in a victims’ or
war veterans’ organization. It is important to analyse the composition of the sample
in order to check whether the criteria for selecting the respondents were met and
the data can be considered valid. In other words, who were the respondents in
this survey and what does it tell us of the relevance of these data? Answers to these
questions will allow us to learn about the composition of the group of respondents,
assess its diversity, and be aware of the factors that may influence the respondents’
opinions and attitudes.
Age
For the reasons explained above, our main target was the population aged between
26 and 64 years. As a reminder, those respondents who were 26 years old were
12 years old at the beginning of the war (in 1992) and 15 years old when the war
ended (in 1995), and those respondents who were 64 years old were 50 years old
at the beginning of the war and 53 years old when the war ended. Our sample met
our objective, as 79 per cent of the respondents were indeed between 25 and 64
years old, with the youngest respondent being 18 years of age and the oldest 84
years. The average age of the sample was 40 years.
For reasons of simplification in the analysis we have grouped the respondents
into different age groups (Figure 9.1). Within the target group of age 25–64 years,
most of the respondents were below 55 and they were distributed evenly age-wise:
26 per cent were between ages 25 and 34 years; 22 per cent were between 35 and
44; and 22 per cent were between 45 and 54. Only 10 per cent were aged between
55 and 64. Out of the target group, a small percentage of respondents were below
age 25 (13 per cent) or above age 64 (8 per cent).
Gender
As intended, the sample had an almost equal gender distribution: 51 per cent of the
respondents were male and 49 per cent female.
250
200
Frequency
150
100
50
0
<25 25–34 35–44 45–54 55–64 65–74 75+
Age Groups
FIGURE 9.1 Age distribution total sample – age groups and frequencies
Note: Missing cases: 0%; Median 40 years old; Range 70 years
Employment
As far as employment is concerned, most of the respondents (55 per cent) were
employed for the 6 months that preceded the survey, while 45 per cent were not.
Although employment was not one of the criteria when selecting our sample, it
was interesting to see how the group of respondents was almost divided in two
between those who had been and those who had not been employed for the 6
preceding months. This not only reflected the then current reality of Bosnia, with
45.5 per cent of unemployment (CIA Factbook, 2006), but also demonstrated the
diverse character of our group of respondents in terms of socio-economic status.
Education
A majority of our sample (61 per cent) had completed high school at the time of
the survey, which included regular high school (42 per cent) as well as vocational
high school (19 per cent) (Figure 9.2). The group of respondents who had com-
pleted higher education comprised 29 per cent, of whom 16 per cent obtained a
university degree (4 years), and 14 per cent had completed 2 years of university
(so-called ‘higher school’). A minority of 8 per cent of our sample had completed
only primary school. The sample was thus mainly composed of individuals who
had reached a medium level of education. According to general statistics at that
50%
Percent 40%
30%
20%
10%
0%
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Level of education
FIGURE 9.2 Highest level of education completed at the time of the survey
time, 102 per cent of Bosnian citizens were enrolled in primary school, 91 per cent
in high school, and 54 per cent in higher (or tertiary) education.7
Religion
We had intended to target three groups of respondents of similar size according
to their religion, which is the main factor of distinction between the three ethnic
groups that are also ‘constituent peoples’ of the state of Bosnia and Herzegovina.
These three groups are: Orthodox Serbs, Catholic Croats, and Muslim Bosniaks.
In the question on religion, besides these three groups, we also inquired about
the number of Jewish8 respondents and a possibility was provided for respondents
to opt for ‘other’ religion. General statistics at that time pointed at 48 per cent of
Bosniaks, 37.1 per cent of Serbs, 14.3 per cent of Croats and 0.6 per cent of oth-
ers living in the country (CIA Factbook, 2006). Our survey opted to give equal
voice to the three groups, despite the suggested unequal numbers in absolute terms.
However, the possibility always remains to analyse the data according to the esti-
mated composition of the population.
Our sample was constituted by 33 per cent of Catholics, 32.4 per cent of Mus-
lims, and 32.2 per cent of Orthodox (Figure 9.3). The Jewish respondents made
up 0.2 per cent of the sample, 1.4 per cent said they had other religion and 0.7 per
cent said they had no religion. Due to the very low number of respondents who
were either Jewish, had a religious affiliation other than Catholic/Jewish/Muslim
or Orthodox, or who did not have any religious affiliation, we often decided to
exclude the answers given by these respondents when analysing the relationship
between opinions or attitudes and the religious affiliation of the respondents.
40%
30%
Percent
20%
10%
0%
Catholic Jewish Muslim Orthodox Other None
Religious Affiliation
FIGURE 9.3 Religious affiliation
Membership in victims’ or war veterans’ organisations

Due to the relevant role that civil society can play in the process of dealing with
the past, and based on the belief that being a member of a victims’ or a war veter-
ans’ organisation may have a significant impact on the perceptions and opinions of
individuals, we found it important to know whether our respondents were or were
not members of any of these types of civil society organisations.
It is noteworthy that a vast majority indicated neither being members of victims’
organisations (96 per cent) nor of war veterans’ associations (95 per cent) (Table
9.1). Conversely, 5 per cent were members of war veterans’ associations and only
3 per cent were members of victims’ organisations. For the latter, we asked which
organisation they were members of.
TABLE 9.1 Membership in victim organisations or war veteran associations (%)
Yes No
Member of victim organisation 3 96
Member of war veteran association 5 95
Note: Value ‘I don’t know’ excluded.

Experiences of victimisation during and after the war

Through this survey we aimed to analyse the opinions and attitudes of individuals,
citizens of Bosnia and Herzegovina, on how to deal with the past and rebuild trust.
For the purpose of understanding how each person’s experiences could shape their
opinions and attitudes towards these issues, we also asked about the victimisation
experiences of the respondents.
Direct and indirect victimisation

In order to grasp fully the type and extent of victimisation suffered by the respond-
ents we inquired about forms of direct victimisation (e.g. physical injuries to the
respondent), indirect or secondary victimisation (e.g. having lost family members),
and displacement, a particular form of victimisation with joint characteristics of
direct and indirect victimisation and specifically common during the conflicts in
the Balkans. These different types of victimisation (material, physical, indirect, and
displacement) are ordered in Table 9.2 according to the frequency of their being
reported by the respondents.
Of all forms of victimisation, and also among the ‘direct’ forms of victimisa-
tion, the one most frequently suffered by our respondents was loss of income (61
per cent), followed by loss of property (54 per cent). Forced displacement9 was,
among all forms of victimisation, the second most frequently listed form of vic-
timisation (57 per cent). Taken together, it means that material loss was the most
frequent form of victimisation suffered by our respondents, as more than half of
them were forced to move out of their home/town, lost property, and lost income.
This reinforces a broader trend in war-related victimisation (Kiza et al., 2006: 80).
There is a considerable difference between the frequency of reporting ‘material’
TABLE 9.2 Direct and indirect victimisation experiences (%)
Once Two or more Total

Loss of income 59 2 61
Loss of property 41 13 54
Forced displacement 39 18 57
Family members killed 20 31 51
Attempted killing 11 13 24
Family members gone missing 10 10 20
Physical injury 11 8 19
Detention 7 4 11
Torture 5 3 8
Sexual abuse 1 0 1
Notes: Total missing cases: loss of property 5% ; loss of income 12%; attempted killing 8%; physical injury
12% ; detention 11% ; torture 10%; sexual abuse 11%; forced displacement 7 %; family members killed
6%, family members gone missing 8%.
Values <0.5% not shown.
Question: Did you experience any of the following during and because of the war?
victimisation and the other more physical types of direct victimisation. Of the lat-
ter, about a quarter of the respondents said that someone had tried to kill them,
19 per cent said they had suffered physical injuries,10 11 per cent had been held in
detention and 8 per cent had been tortured.11 Only 1 per cent of the respondents
reported having suffered sexual abuse.
It is interesting to see that the highest numbers of ‘missing cases’, i.e. where
respondents did not say whether or not they had suffered that type of victimisation,
were registered for almost all of the physical (and violent) types of victimisation,
as well as for ‘loss of income’. This may be due to different factors: in some cases
it might be due to a difficulty in understanding the concepts used (e.g. torture,
detention, physical injury, but specially in the case of ‘loss of income’, where it
might have been hard for the respondents to determine if and when they should or
should not report such a loss); in other cases it probably follows a general tendency
captured by social research on the underreporting of sexual abuse (11 per cent
missing cases).
As to the indirect or secondary forms of victimisation, more than half of the
respondents reported having lost one or more family members and a somewhat
fewer than a quarter said one or more family members had gone missing. This
shows that secondary victimisation was a highly important form of victimisation
during the conflict in Bosnia. The pain and distress associated with this type of vic-
timisation, often reinforced by a continued lack of information about missing rela-
tives or the whereabouts of their remains, may account for high levels of emotional
suffering, in comparison to material or physical damage (which is more connected
to direct/primary victimisation).
Relationship between victimisation experiences

For a better understanding of victimisation experiences during the Bosnian conflict
it was important to probe the relationship between different types of victimisation.
Table 9.3 shows the Pearson correlations between the different types of victimisa-
tion, i.e. the degree to which one type is related to another. The degree of inter-
relation is given by the numbers, and the higher the number the higher the degree
of interrelation between the types of victimisation.
Overall, one can note the high degree of interrelation between the different
types of victimisation, and some of these relationships stand out in particular. This
is the case for displacement, loss of property, and loss of income. It means that many
of the respondents who were forcibly displaced also lost their property, and many
of those who lost their property also lost their income. This accounts for a strong
relationship between displacement and material damage.
It is also interesting to note the strong relationships between detention, torture,
physical injury, attempted killing, and more specifically between torture and sexual
abuse. This seems to suggest that places of detention (such as the notorious camps
throughout Bosnia, like Omarska, Keraterm, Trnopolje, Celebici) were also places
where physical injuries, attempted killings, sexual abuse, and torture frequently
TABLE 9.3 Pearson correlations between victimisation experiences
Loss of income Loss of property Attempted Physical Detention Torture Sexual abuse Displacement Family killed Family missing
killing injury
Loss of Income 1 .456(**) .203(**) .153(**) .201(**) .136(**) .066 .267(**) .059 .220(**)
Loss of property 1 .199(**) .154(**) .204(**) .166(**) .041 .540(**) .169(**) .223(**)
Attempted killing 1 .365(**) .273(**) .249(**) .109(**) .216(**) .185(**) .204(**)
Physical injury 1 .345(**) .291(**) .206(**) .146(**) .163(**) .126(**)
Detention 1 .515(**) .284(**) .178(**) .123(**) .266(**)
Torture 1 .328(**) .128(**) .068 .270(**)
Sexual abuse 1 .078(*) .029 .104(**)
Displacement 1 .165(**) .149(**)
Relatives killed 1 .263(**)
Relatives missing 1
Note: ** Correlation is significant at the 0.01 level (2-tailed).
took place. The link between sexual abuse and torture is also understandable, as
the abuse itself may constitute a form of torture or else be inflicted simultaneously
with other torture acts.
Active participation in the war

To complete our picture of opinions and attitudes being shaped by victimisation
experiences we have also tried to understand the respondents’ active participation
in the war, i.e. in the fighting. Respondents were able to choose more than one
possible answer, thus for each option there could be an overlap of respondents
(Table 9.4). We chose to analyse the percentage of cases, i.e. to look at the total
number of respondents and see how many of them chose the first option, and so
on. There can be an overlap of respondents in the different options, and thus the
sum of the percentages for each option will be higher than the percentage that cor-
responds to the number of respondents.
When looking at the total number of respondents, a two-thirds majority (67
per cent) said they were not active participants in one of the parties involved in the
war, while 32 per cent of the answers corresponded to cases in which the respond-
ents had been active participants, of whom 9 per cent of had supplied one of the
sides, 19 per cent had participated armed in the military or police forces, 2 per cent
had participated armed in paramilitary groups, and 1 per cent had participated as a
member of other armed groups.
Self-perceived (subjective) suffering during and after the war

Regardless of the objectively determined human rights violations that each indi-
vidual suffered during the war and that were reported in the survey, we consid-
ered it important to assess how each individual perceived his or her own suffering
both during and after the war. The subjective and objective dimensions of suffer-
ing or victimisation do not always correspond. Because the attitudes and opinions
inquired about in this survey are, in essence, subjective it is very important to know
TABLE 9.4 Active participation in the war (% of cases)1
No I was not 67
I participated armed in the military or police forces 19
I supplied one of the sides (food, money, . . .) 9
I participated armed in paramilitary group 2
I participated as a member of other armed group 1
Note: Missing cases: armed participation 9%; supplier 16%; armed participation in paramilitary 21%;
other armed group 22%.
Value ‘I don’t know’ excluded.
Question: ‘Were you an active participant of one of the parties involved in the war?’
1 Note that the options on this and subsequent tables do not reflect the order in which the same alterna-
tives were presented in the questionnaire, but are presented in an hierarchical order.
how the victimisation experiences are subjectively perceived. In the end, these
subjective opinions will depend on the perceived suffering rather than on an objec-
tive list of violations suffered. As ‘suffering’ also encompasses much more than just
legally defined violations of human rights or crimes, we aimed to understand in a
broader manner the damage or harm12 suffered by each respondent. We therefore
asked them to rate the degree of self-perceived suffering inflicted upon them, both
during and after the war, in physical, material and emotional terms.
The responses show that over half of the respondents said they suffered little or
very little physically (57 per cent) during the war (Table 9.5). However, a consider-
able majority said they had suffered much or very much in material terms (73 per
cent), and an even larger majority reported having suffered much or very much in
emotional terms (86 per cent) (Figure 9.4).
70
60
50
40
30
20
10
0
Physically/
during war
Physically/
after war
Materially/
auring war
Materially/
after war
Emotionally/
during war
Emotionally/
after war
“I have suffered very much”
FIGURE 9.4 High physical, material and emotional suffering during and after the war
TABLE 9.5 Self-perceived (subjective) suffering (physical, material, emotional) during and
after the war (%)
Very little Little A lot Very much
Physically During the war 42 15 13 24
After the war 48 16 9 18
Materially During the war 12 11 19 54
Emotionally During the war 5 5 16 69
Notes: Missing cases: physically during 12.2%; materially during 8.2%; emotionally during 5.6%; physi-
cally after 13.2% ; materially after 7.5% ; emotionally after 6.5%.
Question: ‘In your opinion, how would you rate the suffering that was caused to you during the war?’
Question: ‘In your opinion, how would you rate the suffering that was caused to you after the war?’
When focusing on the suffering after the war’s end, the relationship among
the different types of suffering was very similar, with an expected decrease in the
percentages of ‘affirmative’ suffering. Material suffering was reported by 61 per
cent of the respondents and 69 per cent said they had suffered much or very much
emotionally; conversely, the percentage of those who had suffered little or very
little physically increased to 64 per cent. From this data we could conclude that
respondents reported having suffered mostly in emotional terms, both during and
after the war, that they suffered material damage in the second place, and physical
harm in the third place.
Some striking features should be highlighted. First, we consider the percentages of
those saying that they suffered little or very little in physical terms during (37 per cent)
and after the war (28 per cent) to be fairly low, which could be explained by the fact
that many of those who did suffer in such way have passed away. Second, in contrast,
the percentages of emotional suffering, both during and after the war, seem to be on
the high side. Although this could reasonably be expected, it suggests that (in 2006 at
least) a great number of past and current programmes in the country had not targeted
a major type of harm, namely, emotional harm. Programmes of psychological and
psychosocial assistance had been designed and implemented in Bosnia but the trauma
work seemed to have been omitted from the priorities and focus of larger organisa-
tions or institutions. Our results indicate that emotional suffering remains over time,
and hence they point to the importance to programmes and initiatives for dealing
with these issues for a long time after the official end of the war.
Place of residence, displacement and return

Another aspect relating to the experiences of individuals during and after the war and
that has been found to play an important role in the opinions and attitudes of people
in Bosnia (Corkalo et al., 2004) is the place where they lived before the war and the
place where they were living at the time of the survey, and whether they had been
forced to move. First of all, each town and region in Bosnia had different experi-
ences during the war (such as under whose control it was, the degree and extent of
violations taking place, etc.) and after the war (given the changes in the population
distribution throughout the country). In order to understand the differences in opin-
ions and attitudes it was therefore important to know where the respondents came
from originally. Second, it was important to know whether the respondents had been
forced to leave their place of residence and, if yes, whether they had returned. As one
of the most common practices during the war in Bosnia and Herzegovina was to for-
cibly displace groups of people in order to create ‘ethnically cleansed’ areas, and one
of the consequences of the war was indeed an incredible change in the population
distribution throughout the country, it can be argued that the enforced displacements
and the process of return could have an enormous impact on people’s views.
Out of our sample, a two-thirds majority (63 per cent) of the respondents had
been forced to leave the place they lived in before the war (against 37 per cent who
were not) (Table 9.6). Out of the former, 38 per cent had returned to their original
TABLE 9.6 Return after forced displacement
n %
Yes 319 38
I did not leave the place where I lived 310 37
No 203 24
Note: Missing cases: 2.7%

Question: ‘In the case that you were forced to leave the place where you lived during and because of
the war, did you return to the place where you used to live before the war?’
place of residence, while 24 per cent had not. This means that, of those who were
forced to leave their place of residence, almost a quarter (24 per cent) returned,
while one-sixth did not return (15 per cent).
Conclusion
Debates about post-conflict justice tend to be heavily dominated by national and
international elites – political, economic, and from civil society – and the views
and expectations of the local populations are rarely recorded or taken into account.
It is precisely this lack of information about what people think about post-conflict
justice issues that led us to conduct this empirical research in Bosnia back in 2006.
Our underlying assumption was that such population-based research provides an
additional and valuable source of information and our aim was to contribute to a
better understanding of transitional justice ‘from below’.
In this chapter we have reported on two main aspects. First, the methodological
steps undertaken to set up and carry out a quantitative survey in a post-war country
proved more difficult than we expected. While the lack of reliable population data
made it hard to compose a representative sample for Bosnia, we nevertheless tried
to collect reliable information from a diverse group. In the end, 855 individuals
– citizens and residents of Bosnia targeted according to pre-established criteria that
suited our research interests – responded to our questionnaire, making this survey
one of the largest ever conducted in the country. The results offer some very
interesting insights in the experiences of Bosnian people in relation to the war and
the post-war period, although they cannot be considered fully representative of the
experiences and opinions of the whole population.
Second, it is worthwhile summarising some of the most salient findings in rela-
tion to the victimisation experiences of the respondents. In relation to direct vic-
timisation, the types of harm more frequently reported were related to material
damage (such as loss of income and loss of property); around one-sixth of the
respondents had suffered either injuries to themselves or attempts on their lives;
and a relatively small number of respondents had been victims of torture, of illegal
detention, or of sexual abuse. As to indirect victimisation, less than one-third of
the respondents reported that one or two family members had been killed. Also
interesting are the results of self-perceived suffering, with most of the respondents
reporting having primarily suffered emotional harm, then material harm, and last
physical harm. In our sample a majority had been forced to leave the place where
they lived before the war, and out of these, a majority reported having returned.
Acknowledgement
The authors gratefully acknowledge the financial support of the Research Fund of
the University of Leuven for the four-year research project of which the Bosnian
survey was a part. They also wish to express their sincere thanks to Julian Roberts
(Oxford University) and Johan Goethals (University of Leuven) for their insight-
ful comments on earlier versions of the empirical part of the survey, and to Marta
Valiñas and Almir Maljevic for their efforts in organising the data collection and
analyses of the Bosnia survey.
Notes
1 We adopt the definition of transitional justice from the UN Secretary General’s report of
2004 as ‘the full range of processes and mechanisms associated with a society’s attempts to
come to terms with a legacy of large-scale past abuses, in order to ensure accountability,
serve justice and achieve reconciliation’ (United Nations, Security Council, 2004: 4).
2 Some of the questions used in our questionnaire, in particular the ones relating to vic-
timisation, were substantially informed by the questionnaire used in this study, given
the similarity of the issues under study and in an attempt to build upon and deepen the
research previously done.
3 When the characteristics of the population from which the sample is to be taken are
not fully and accurately known, it is impossible to have a representative sample. For this
reason, probability and random sampling methods may not be the most adequate.
4 The difference between quota sampling (a non-probability method) and stratified ran-
dom sampling (a probability method) is that in the former ‘the sampling of individuals
is not carried out randomly, since the final selection of people is left to the interviewer’
(See Bryman, 2008: 102).
5 According to the CIA Factbook, Bosnia and Herzegovina (2006) the population of the
country was back then composed of Bosniaks 48 per cent, Serbs 37 per cent, and Croats
15 per cent (data from 2000).
6 Although the survey results cannot be considered representative for the whole popula-
tion of Bosnia, it is important to note that because of the disproportionate sample in
terms of the respondents’ religious affiliation the percentage of respondents in each reli-
gious affiliation group cannot be taken as representative for the total population. In other
words, if we say that to question ‘x’ out of those who said yes, 30 per cent were Muslims,
50 per cent were Orthodox, and 20 per cent were Catholic, this does not mean that out
of the whole population of Bosnia 20 per cent of those who said ‘yes’ to that question
were Croats. This is why, in most cases where we have used cross-tabulations to analyse
our data, we have opted to look at each religious group and within this group to see how
many of the respondents, for example, said ‘yes’ and how many said ‘no’.
7 Data available at www.uis.unesco.org/profiles/EN/EDU/countryProfile_en.aspx?
code=570.
8 There is traditionally and historically a presence of Jewish people in Bosnia and
Herzegovina.
9 In the question it was specifically said that ‘forced displacement’ included having to leave
one’s house or apartment, whether staying in the same city or village afterwards or in
another one.
10 In order to clarify what was meant by ‘physical injuries’ in the questionnaire, the follow-
ing specification was given in the question itself: ‘e.g. if you were hurt and needed to go
to the hospital or receive treatment’.
11 Given that torture also involves physical injury and that the respondents might not be
familiar with its legal definition, the following was used in the question to clarify the
meaning of ‘torture’: ‘when you have been intentionally hurt by, or under orders and
with the knowledge of a public official’.
12 The concept of harm, especially when referring to the suffering of victims of crime
or large-scale violations, has been gradually understood in a broader sense, including
not only physical and material but also emotional damage. See the UN Basic Principles
and Guidelines on the right to a remedy and reparation for victims of gross violations
of international human rights law and serious violations of international humanitar-
ian law (United Nations, General Assembly, 2005: point V, 8): ‘Victims are persons
who individually or collectively suffered harm, including physical or mental injury,
emotional suffering, economic loss or substantial impairment of their fundamental
rights.’
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Parmentier, S. Valiñas, M. and Weitekamp, E. (2010). How to restore justice in Serbia? A
closer look at peoples’ opinions about postwar reconciliation. In: Crimes of State: Current
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Parmentier, S. and Weitekamp. E. (2007). Political crimes and serious violations of human
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PART II
Responses to state crime

victimization
10
EUROPEAN COURT OF HUMAN
RIGHTS
Accountability to whom?
Isabel Schoultz
Introduction
One of the general propositions formulated by Kauzlarich, Matthews and Miller
in their article “Towards a Victimology of State Crime” is that: “Victims of state
crime tend to be among the least socially powerful actors” (Kauzlarich et al. 2001:
183). They identify structural patterns that facilitate state crime victimization, not-
ing that: “the poor, racial and ethnic minorities, and women are explicitly or tacitly
victimized by the state” (Kauzlarich et al. 2001: 176). Holding states accountable
for their crimes has been a central issue for both formal, informal, domestic and
international control mechanisms (Ross 2011). One important form of control of
the activities of the state is found in the work of the European Court of Human
Rights in Strasbourg (hereafter referred to as the European Court or the Court).
The European Court examines allegations pertaining to violations of the European
Convention on Human Rights made by individuals, groups, organizations and
private businesses who consider their rights to have been violated. It is not only
citizens who have the right to make complaints to the Court, but all individuals
present within a country’s borders who are affected by the decisions of its public
sector agencies. These complaints are directed at the state as the body responsible
for the actions of persons working in the public sector, and not at individuals or
specific public sector agencies (Bring and Mahmoudi 2007). The European Court
can be understood as an example of what Mulgan (2000: 565) has referred to as
“institutions of accountability” and as a formal institution for seeking redress.
At the same time, Dembour (2006) suggests that access to redress is far from
equal, in the sense that privileged applicants have a greater chance of being heard
by the European Court. In other words, even though some social groups are more
vulnerable to human rights violations, this does not necessarily mean that these
groups are the ones who are able to hold the state accountable. This chapter aims
174 Isabel Schoultz
to discuss the characteristics of those who hold the state accountable through the
European Court, from both a quantitative and qualitative perspective, and will
attempt to answer the question of accountability to whom? The question of account-
ability to whom activates the discussion of the control of the state, and of how this
works in practice within the European Court. It is, in other words, an issue of access
to accountability. Goodey (2005) points at three factors that are central in relation
to the issue of accountability for victims of crime in general: power, knowledge
and citizenship. For example, the most marginalized victims tend to have the least
power and knowledge to deal with the aftermath of victimization, and many of the
most vulnerable and marginalized victims of crime are not citizens.
According to the Universal Declaration, human rights apply to individuals, not
to citizens of the nation state (Erman 2006, Weissbrodt 2008, Nash 2009, Dem-
bour and Kelly 2011). In practice, however, states constantly violate the human
rights of asylum seekers and migrants on the basis of their citizenship status (Green
and Grewcock 2002, Fekete 2005, Pickering 2005, Green 2006, Khosravi 2009,
Dembour and Kelly 2011). Differentiating between citizens and non-citizens as a
means of focusing attention on the inequitable enforcement of human rights might
therefore constitute a fruitful way of approaching an understanding of issues of
accountability. However, the construction of categories such as citizens and non-
citizens by definition implies that these categories are binary, exclusive and unam-
biguous, when in fact they might rather be understood as complex and unstable
(Yuval-Davis 2006, Battjes et al. 2009, Nash 2009). For example, noting the dis-
tinctions made by states and their border control practices between different groups
of non-citizens or, more explicitly stated, between globally privileged tourists and
less privileged asylum seekers, who are often described as “illegal,” may provide
us with a better understanding of the presence of highly unequal social positions
(Aas 2011). The category “citizens” is also problematic, since minorities such as
the Roma and indigenous peoples in, for example, Scandinavia often constitute
vulnerable groups, even as citizens of a given society. Some have argued that both
minorities and indigenous groups have been given little protection by the Euro-
pean Court of Human rights (Goldston 2010, Koivurova 2011).1
The false universalism of citizenship has also been challenged from a gendered
perspective, and by scholars who note the significance of multiple identities based
on ethnicity, class, sexuality and disability (Hobson and Lister 2002). Historically,
for example, men have as a group gained rights by means of a citizenship that has
been denied to women (Yuval-Davis 1993). Within the group women, migrant
and minority women have been granted an even more marginal access to social
citizenship and human rights in Europe (Hobson and Lister 2002). As Williams
(2003: 123) has noted, “individuals generally have multiple identities for which
more than one may be subject to exclusion from rights.” Therefore, social cat-
egories are best understood as intersecting, interdependent and being constructed
by one another rather than as separate, homogenized and being added on top
of one another (Yuval-Davis 2006, Bowleg 2008). The complexity of identi-
ties and human rights claims should in this sense not be simplified by referring to
European Court of Human Rights 175
citizens or non-citizens without also recognizing how these social categories inter-
sect with other social categories such as sex/gender, ethnicity, religion/belief, sexu-
ality, dis/ability, age and class. In this chapter, I will therefore attempt to use a more
intersectional approach by classifying the applicants found in judgments from the
European Court on the basis of a number of these social categories, in spite of the
fact that coding actors into specific categories always involves a risk of normalizing,
simplifying and homogenizing complex social relations (McCall 2005). This will
be discussed further in connection with the presentation of the methodological
approach employed in the study.
Access to justice and accountability through the

European Court
To better understand the process of holding the state accountable, we can begin
by considering two central questions from accountability theory, and can then also
make use of the concept of access to justice. Accountability refers to the possibil-
ity of holding the powerful to account by means of external scrutiny and sanctions
(Mulgan 2000). Within accountability theory, two types of questions are usually
asked: to whom and for what? (Bovens 2005). The central focus of this chapter will be
directed at the first of these questions (to whom?), which involves the different types
of forum in which the state and public officials may be called to account (Bovens
2005); in this chapter, the focus is directed at the institution of the European Court
of Human Rights. In addition, the question is extended to those who have made
submissions to the Court and, in those cases where their claims were found to be
admissible, who have been able to hold the state accountable. The second ques-
tion (accountability for what?) will be dealt with by discussing the types of violations
examined by the Court in its judgments (i.e. which Articles of the Convention the
submissions claim have been violated).
The concept of access to justice has been described as “the most basic require-
ment – the most basic ‘human right’– of a modern, egalitarian legal system which
purports to guarantee, and not merely proclaim, the legal rights of all” (Cappelletti
and Garth 1978: 185). Research in this area has traditionally been focused on the
empirical documentation of how the legal system falls short of its supposed prom-
ise, particularly in relation to less privileged groups (Sandefur 2009). Cappelletti
and Garth (1978) point to barriers in the legal system that may be of relevance to
an understanding of access to state accountability by means of the European Court:
costs of litigation, time and party capability (including the competence to recognize
and pursue claims and experience of the judicial system). They further note that the
barriers to access to justice are highest in relation to legal actions that are focused on
relatively small injuries caused by powerful actors. In addition, Curran and Noone
(2008) identify four factors that are relevant in relation to access to justice from a
human rights perspective: knowledge of the right, having the capacity to pursue
the right, having confidence to pursue the right and the availability of accessible,
affordable, timely and effective processes for accountability. Thus, having access to
176 Isabel Schoultz
justice in practice, rather than merely at a theoretical level, may mean overcoming
significant barriers for certain groups of individuals.
The process in the European Court of Human Rights

The European Court of Human Rights in Strasbourg is linked to the European
Convention on Human Rights. Through the ratification of the Convention, states
are bound by the Convention and have an obligation to follow rulings made by
the European Court. In order to take a case to the European Court, all domestic
legal options must first have been exhausted. An individual, non-governmental
organization or group of individuals who claim to be victims of a breach of the
Convention can complain to the Court by sending a letter to the Court or filling
out an application form. At this stage of the proceedings the applicants do not have
to be represented. However, if a notification regarding the application has been
sent to the government concerned, the applicants should be represented by some-
one acting on their behalf, unless the President of the Chamber decides otherwise.
The applicants will have to cover their own costs, but may be granted legal aid.
Once the complaint is filed, the Court examines whether the application is admis-
sible. The overwhelming majority of these applications (more than 95 percent)
are rejected, however, and this decision is final and cannot be reversed. There are
many reasons for applications being found inadmissible, which include an applica-
tion being manifestly without grounds, the non-exhaustion of domestic remedies
or the application having been submitted more than six months subsequent to the
final domestic decision.
If a complaint is declared admissible, the Court will first encourage a friendly set-
tlement between the state and the applicant. If no settlement is reached, the Court
will determine whether or not there has been a violation of the Convention. If
the Court finds that there has been a violation, it can award damages for economic
or immaterial injury. The Court can also require the state to refund the expenses
incurred by the applicant in presenting the case (European Court of Human Rights
2011, European Court of Human Rights 2013). Since the vast majority of com-
plaints are dismissed, most of those applying to the European Court will never be
able to hold the state accountable. This chapter presents an analysis of those who
perceived themselves to be victims of human rights violations and whose cases were
declared admissible and thus selected to be dealt with by the Court.
Methodology – a categorical intersectional approach

Dividing people into social categories has long been a way both of making sense of
the world and of revealing structural patterns; however, the construction and use of
categories in this way has also been the subject of both criticism and debate (Young
2001, Turner 2010). Ruppert (2012) calls for an awareness of how we, by identify-
ing, classifying and categorizing people, constitute the social world we are describ-
ing. Nonetheless, categories that might be challenged as having no foundation
in reality and that some would argue should therefore be deconstructed (McCall
2005) are used strategically in the methodological framework employed in this
study in order to facilitate a focus on the issue of how different groups of individuals
make the state accountable through the European Court of Human Rights.
In order to meet the challenges associated with studying the complexity of
intersectionality, quantitative methods have often been rejected (McCall 2005).
This is not least because quantitative research is considered to rule out a genu-
ine intersectional approach (i.e. viewing social identities as interdependent and
mutually continuative) and to instead fall into an additive approach (conceptualiz-
ing people’s experiences as separate, independent and summative) (Bowleg 2008).
Even so, McCall supports the use of quantitative methods, proposing the use of an
intercategorical approach, using multiple traditional categories in order to document
inequalities among social groups (McCall 2005). The use of quantitative methods
for the purpose of intersectional analysis has also been frequently applied in the field
of criminological research (Burgess-Proctor 2006). The intercategorical approach
proposed by McCall is adopted here and involves first examining and comparing
different dimensions of the categories employed (for example between men and
women and citizens and non-citizens) and then synthesizing them into a configura-
tion of categories, forming multiple dimensions in the intersectional analysis.
Deciding which social categories to include in the analysis is another concern for
the intersectional approach. As has been pointed out by Yuval-Davis (2006: 202),
“the list is potentially boundless.” Working with official documents as the basis
of analysis, there are inevitably limitations associated with the information that is
available. The analysis has to be based on the information found in the judgments
from the European Court. The judgments have been read in full text and coded
on the basis of specified categories, namely the citizenship (Swedish, European and
non-European), sex (female and male) and age of the applicants (at the time of the
judgment). In addition, a category I will refer to as “social position” has also been
coded for each applicant. This category refers to the way in which the applicant is
described in the judgment, which is usually associated with the type of claim that
is being made by the applicant. Examples of different groups found within this cat-
egory include, for example, asylum seeker, owner of a business, property owner,
state benefit applicant, immigrant, homosexual, parent, suspected/convicted crimi-
nal and worker. This categorization is connected to many of the different social
categories that are often included in an intersectional analysis, such as class and
sexuality.2 Most judgments allowed for the identification of these four categories,
with the exception of applications from organizations, where these variables were
left blank. For both individuals and organizations, the Articles that the applications
claimed to have been violated have been coded, based on an assumption that this
will say something both about the applicant and about access to accountability. For
example, it may be reasonable to assume that if the claims made by a specific group
of applicants are very similar, the absence of variation in the claims examined by the
Court may be a sign of the Court’s limited accessibility to the group in question.
Similarly, if the claims relate to the violation of certain Articles considerably more
178 Isabel Schoultz
often than others, this might be interpreted as indicating a problem specifically

associated with the behavior of the Swedish state, but also as an indication of the
nature of, and the limitations associated with, the process of accountability. This
part of the coding process, in which “many words of the text are classified into
much fewer content categories” (Weber 1990: 12) and thereafter counted, may be
described as constituting a basic content analysis. In addition, a subjective interpre-
tation of the description of the applicant, where such a description exists, has been
noted for each judgment in order to be able to identify patterns and themes using a
more qualitative approach (Hsiu-Fang and Shannon 2005).
Besides information about the applicants and their claims, general information
about the outcome of the case has also been coded. This coding differentiates
between those cases where the Court found at least one violation, those where
the Court found no violation and those where friendly settlements were reached.
The coding has also noted whether any compensation for damages was awarded
by the Court, and if so what type of compensation. Differentiating between appli-
cants whose cases resulted in different outcomes makes it possible to further develop
the question of accountability to whom.
The analysis is based on all judgments made by the Court in relation to the
Swedish state between the years 2000 and 2010. These comprise 25 judgments
where at least one violation was found, 9 judgments where no violation was found,
and 19 friendly settlements. This total of 53 judgments related to claims from 93
applicants, since several of the judgments included more than one applicant (see
Table 10.1). Regardless of the outcome of the claims, the 93 applicants may all be
viewed as having held the state accountable. Even if the judgments are few in rela-
tion to the possibility of conducting a quantitative analysis, the study nonetheless
constitutes a census of all the relevant cases processed over the course of a decade.
In order to conduct a complete analysis of the process of selection, from those
applying to the Court to those given the chance to hold the state accountable, I
would have needed the cases that were found to be inadmissible. These constitute
the largest proportion of applicants, amounting to over 3,000 between the years
2000 and 2010. Since their cases are never examined by the Court, however, I was
unfortunately not given access to these applications. Instead the analysis is based on
the small proportion of cases that were selected to be examined by the Court. The
nature of the cases that were not selected is something that I can only speculate
about and reflect upon on the basis of previous research.
Before I present the results from the analysis, a clarification is needed as to the
generalizability of the study. Buchinger and Steinkellner (2010) provide a number
of examples of regional differences that affect the possibilities for making generali-
zations on the basis of a single-country sample of cases from the European Court.
The treatment received by immigrants and asylum seekers at the hands of the prison
system, for example, appears for the most part to be an issue in Greece and Italy.
As regards the protection of the rights of transsexuals, the area has been dominated
by cases from the United Kingdom (Brayson and Millns 2010). Thus, general-
izing on the basis of the Swedish cases and the conclusions that I draw from them
to all cases examined by the European Court would be problematic. The analysis
should rather be seen as an illustration and discussion of those who hold the state
accountable. It is also worth noting that the study constitutes a sociological analysis
of judicial documents. Thus my principal interest is focused not on the legal argu-
ments but rather on the practices or outcomes associated with the cases processed
by the European Court (see Battjes et al. 2009), i.e. what might be labeled “the law
in action” (Chambliss 1969, Pound 1910).
Results
Overview of the judgments and applicants

The information presented in Table 10.1 illustrates a number of general patterns:
most applicants are individuals, Swedish citizens, male and 41 years of age or
older. In addition, most of the complaints that are examined by the court relate to
Article 6 and the right to a fair trial. This general pattern among the applicants and
their complaints appears to apply irrespective of the outcome of the case, although
there are some notable differences between those cases where violations were
found, those where friendly settlements were reached and those where no violation
was found. A number of these differences will be discussed later in the chapter.
In the following, these patterns will be expanded upon and discussed through
the combination of different categories and variables and the development of a
more qualitative and intersectional analysis of different aspects of the applicants and
their claims.
The claims of non-citizens

Swedish citizens comprise the majority of applicants (see Table 10.1), which is
hardly surprising and does not necessarily mean that citizens have a greater chance
of being heard by the Court. Some have suggested that there has been a recon-
figuration of citizenship within Europe, which has led to an unraveling of the
distinction between national citizenship and universal human rights (Soysal 1994,
Benhabib 2004). Others argue that we are still a long way from experiencing cos-
mopolitan citizenship and universal justice in practice (Nash 2009). In line with
this, Goodey (2000) describes a citizenship-related hierarchy among those living in
the EU: those who are nationals of the EU states in which they reside, other EU
citizens and, finally, non-EU citizens.
Comparing the group of citizens with non-citizens, there is a greater degree of
variation in both the applicants’ social positions and the nature of their claims among
Swedish citizens than among non-citizens. The differences are even clearer when
the group of citizens is compared with those who are citizens of countries outside
Europe. The EU citizens who have filed complaints against Sweden have done so
from their positions as workers, convicted criminals and pensioners, claiming that
their right to a fair trial has been violated. The non-citizens from outside Europe
180 Isabel Schoultz
TABLE 10.1 European Court judgments relating to Sweden between the years 2000 and
2010
Violation No violation Friendly Total
settlement
Number of judgements 25 9 19 53
Number of applicants 40 13 40 93
Type of applicant
Individual 34 12 36 82
Business 4 1 2 7
Other organization 2 0 2 4
Applicant’s citizenship
Swedish 28 9 30 67
Other European 0 2 2 4
Non-European 6 1 4 11
Applicant’s sex
Male 25 6 27 58
Female 7 3 9 19
Age at the time of judgment
up to 20 years 2 2 4
21 to 40 years 4 1 5 10
41 to 60 years 14 5 4 23
61 years or older 11 2 6 19
Claimed violations – Articles found admissible
(for each judgment – a single judgment may
relate to more than one Article)
Article 2 – right to life 1 1 1 3
Article 3 – prohibition of torture 3 1 2 6
Article 5 – right to liberty and security 1 0 0 1
Article 6 – right to a fair trial 16 5 17 38
Article 8 – right to respect for private and 1 4 2 7
family life
Article 10 – freedom of expression 2 1 0 3
Article 11 – freedom of assembly and association 1 0 0 1
Article 13 – right to an effective remedy 2 0 2 4
Protocol 1, Article 1 – right to property 4 0 0 4
Note: For the category citizenship, information was available in all cases. As for the category sex, infor-
mation was missing for six applicants (all of whom were the children of other applicants). Information
on the year of birth was missing to a greater extent, namely in relation to 26 individuals. These indi-
viduals were for the most part associated with cases that led to a friendly settlement or a finding of no
violation.
are, with two exceptions (two Canadian citizens whose complaint related to a court
hearing about an inheritance), described as asylum seekers whose claims focus on
their expulsion from Sweden. Owners of businesses and real estate, who may be
interpreted as constituting more privileged applicants, constitute a significant group
among those who are citizens, but are totally absent from the group of non-citi-
zens. The judgments from the European Court can be said to reflect the distinc-
tion noted by Goodey (2000) between those who are nationals in the EU states in
which they reside, other EU citizens and, finally, non-EU citizens. Although these
differences might be viewed as to be expected, non-citizens residing in Sweden
might well be expected to experience a much broader range of violations of their
human rights than those reflected in the judgments from the European Court. And
overall this might constitute an indication of a restricted ability among non-citizens
to hold the state accountable for the violations they experience.
In addition, the claims relating to Sweden that have been brought to the Court by
non-citizens (particularly from outside Europe) appear to be less varied than in other
countries. Cases relating to asylum seekers and other foreign citizens in Austria, Bul-
garia, France, Germany, Greece, Italy and the United Kingdom, for example, include
claims relating to treatment received at the hands of the police or the prison system,
claims relating to the right to stay in the country for reasons relating to the individual’s
private and family life, and cases relating to discrimination (Buchinger and Steinkell-
ner 2010). Even in the case of these other countries, however, Buchinger and Stein-
kellner (2010) conclude that the Court has dealt with only a rather narrow range of
aspects of the rights of immigrants and asylum seekers. In the same way, Cornelisse
(2011) argues that the Court has shied away from the issue of immigration-related
detention and the relevant principles regarding the deprivation of liberty. This raises
the question of whether the limited range of complaints made by non-citizens to the
European Court, with regard to Sweden in particular but in other countries as well,
could be interpreted as a question of this group having only limited access to justice.
If so, the explanations might perhaps be found in the link between human rights and
the nation-state as well as in the marginalization of migrants on the basis of class and
ethnicity (see Dembour and Kelly 2011).
The lack of female applicants

Looking at the applicants’ sex as this is described in the judgments, females account
for a smaller proportion of the complaints by comparison with males, approxi-
mately 25 percent. Also, in some of the judgments the females are related to a male
applicant, a fact also noted by Buchinger and Steinkellner (2010). The proportion
of female applicants is somewhat smaller in relation to those judgments which
found that a violation had been committed and those which resulted in friendly
settlements by comparison with their proportion among the judgments where no
violation was found (see Table 10.1). These differences are minor, however, and
the number of judgments is too small to allow for a definitive conclusion. How-
ever, since women are often considered to be more vulnerable to human rights
violations than men (see, for example, Bunch 1990, Charlesworth and Chinkin
1993, Kauzlarich et al. 2001), the smaller proportion of females found among the
applications is noteworthy.
This phenomenon has also been discussed by Dembour (2006). She asks
whether women are to some extent prevented from accessing the judicial system
as a result of their comparatively disadvantaged position in society or whether it
182 Isabel Schoultz
has to do with the fact that the Court is unable to comprehend women’s prob-
lems and concerns. Dembour (2006: 218) also asks whether the Court is unable
to handle “claims of women who do not fit the white, middle-class, able-bodied,
heterosexual model,” and states that this question invokes factors that operate far
beyond the Court. Looking at the female applicants in the judgments relating to
Sweden, both female citizens and non-citizens are present and are described as
representing a substantial variety of social positions such as parent, political activist,
jobseeker, business-owner, property-owner and asylum seeker. Generally speak-
ing, the violations described in the claims made to the Court by women and men
respectively are similar, such as violations of the right to a fair trial and of the right
to respect for private and family life. In this sense, the smaller proportion of females
found among the applicants does not necessarily mean that the cases brought by
women and examined by the Court are more homogeneous or limited with regard
either to the social position of the applicants or the nature of their claims. On the
other hand, if women experience different problems and concerns than men, such
as sexual discrimination (see Bunch 1990), this is not visible on the basis of these
applications. At the same time, Brayson and Millns (2010) argue that many cases
dealt with by the Court that have a gender dimension are not viewed as such. The
claims were related to the applicant’s sex in only one of the Swedish cases. In the
case of N. v. Sweden, the applicant was an asylum-seeking woman who stated that
deporting her to Afghanistan would be in breach of Article 3 of the Convention.
She was at risk of serious persecution from relatives, not least since she had left her
husband. The claim combines the applicant’s positions as an asylum-seeker and a
woman. In this sense this case is an exception, in that the applicant is treated as an
intersectional subject with more than one social position of relevance for a viola-
tion of human rights.
The privileged middle-aged man and the business

When the social position described in the judgments is combined with information
on the applicant’s sex, age and citizenship, a pattern emerges with regard to who it
is that is making the state accountable. Generally speaking, most applicants are male
Swedish citizens. Most of the men are over 40 years of age, what could be consid-
ered middle-aged or older. Several of them could also be categorized as privileged in
the sense that they are described as being the owners of real estate or businesses. The
male middle-aged Swedish applicant may be exemplified by the Case of Lilja v. Swe-
den. The applicant’s complaint relates to criminal and tax proceedings against him
based on the submission of incorrect tax declarations connected to the business of
which he is the sole proprietor. The Court considers the length of the judicial proc-
ess conducted against him in Sweden as constituting a breach of Article 6 § 1. The
description of the case and of the applicant is similar to quite a few others, and several
of the applicants in these cases had been represented by the same legal counsel.
Of course, this general description of the applicant as a more privileged, mid-
dle-aged man is not without exceptions. Women do also appear in relation to their
work or the ownership of real estate or a business. And male applicants are pre-
sented in the judgments in the position of asylum seekers, as applicants for welfare
benefits or as criminal offenders, positions that could be considered less privileged.
In addition, in many cases it is worth discussing whether the privileged man is still
privileged, since many of the claims relate to failures of various kinds in relation
to their businesses. Complaints relating to the handling of a bankruptcy are not
uncommon. Further, a considerable proportion of the male applicants are parties
to one of two separate claims involving workers in the construction and fishing
industries, which identifies another aspect of accountability in relation to class. In
relation to factors such as power, knowledge and citizenship (see Goodey 2005),
however, both the male workers and the (failed) business-owner with Swedish citi-
zenship would appear to be well equipped. In addition, it seems that at least some
of these cases are supported by an interest organization that works for lower taxes
in Sweden. In this sense, the applicants are not only receiving additional support to
pursue their cases, the cases themselves have a greater significance beyond that of
redressing the wrongs suffered by the individuals concerned.
Businesses also account for a number of the applicants (see Table 10.1) and, by
comparison with other type of applicants, and in way similar to that of the male
Swedish business- or property-owner, businesses might be regarded as constitut-
ing a group of more privileged applicants. This raises the question of whether this
result should lead us to expand our view of the victims of state crime and recognize
more privileged groups in the victimological framework to a greater extent. Those
who have access to accountability are not necessarily perceived as victims of state
crime in a more discursive sense. Should we perhaps instead interpret the result as a
function of how those with greater capacity and knowledge will be better at hold-
ing the state accountable, as suggested by Dembour (2006)? Perhaps those with less
capacity and knowledge will continue to be neglected if we use the judgments of
formal control mechanisms such as the European Court as an indicator of who the
victims of state crime are. Perhaps the one need not exclude the other. It is difficult
to tell from an analysis of the Court’s judgments relating to the Swedish state, par-
ticularly since we have not been able to compare them with those applicants whose
claims were rejected without having their case examined. However, the size of the
proportion of more privileged applicants does provide an interesting contrast to
research suggesting that the victims of human rights violations are comprised of the
least socially powerful actors (Kauzlarich et al. 2001). It sheds light on the potential
differences between those who are able to hold the state accountable and those who
are most vulnerable to human rights violations, which brings us to the question of
access to accountability.
Access to accountability in practice

With the cases from the European Court relating to the Swedish state as a point
of departure, the question of accountability to whom could be answered in two ways.
Firstly, the quantitative answer would point to the most common applicant who
184 Isabel Schoultz
holds the state accountable. From an intersectional perspective, this approach

would lean towards the identification of the typical applicant as a middle-aged man
with Swedish citizenship, whose complaint focuses on a violation of the right to
a fair trial. He is most likely to be described either as a business-owner, an owner
of real estate or a worker. Secondly, from a more qualitative perspective, there are
a wide variety of applicants with diverse forms of claims, who occupy different
social positions, are of different ages and include not only Swedish citizens but also
citizens of other European and non-European countries. These include applicants
described as asylum-seeking women and men, Sami-villages, trade unions, a male
homosexual, parents and their children, male suspected/convicted criminals, male
and female political activists, heirs to an inheritance and applicants for state benefits.
And the focus of the complaints varies from violations of the rights to life and the
prohibition of torture to violations of the rights to respect for private and family life
and the freedom of expression.
On the basis of these two answers, a number of conclusions can be drawn about
access to accountability, and about what has already been discussed in relation to
the potential difference between those who are most vulnerable to human rights
violations and those who have the ability to hold the state accountable. On the basis
of the first answer, it would appear that the European Court is very selective in
relation to who is given the opportunity to hold the state accountable and for what.
On the basis of the second answer the Court’s selectiveness appears to be more a
problem of quantity than of quality. In other words, there are others besides male,
middle-aged Swedish citizens who are able to hold the Swedish state account-
able, but they are not able to do so to the same extent. As has already been stated,
by examining the judgments from the European Court we cannot necessarily say
very much about those who are victims of state crime, but rather about those who
hold the state accountable. The potential gap between these groups could best be
understood from the perspective that access to accountability is dependent on many
factors. To be able to understand the selection of who it is that gets to hold the
state accountable via the European Court, it would seem reasonable to refer back
to some of the central factors mentioned in the literature. In addition to citizenship
(Cappelletti and Garth 1978, Goodey 2005, Curran and Noone 2008), highly rel-
evant factors appear to be the applicants’ access to power (including money, time,
capabilities/capacities and confidence) and knowledge (of their rights and of the
system of accountability).
We have been able to identify a distributional pattern among those who hold
the Swedish state accountable. The pattern involves an unequal distribution in
relation to citizenship, sex, age and other social positions, and one which appears
to be supported by the literature on the European Court and also by the literature
on victims’ access to justice and redress in general (Cappelletti and Garth 1978,
Goodey 2005, Curran and Noone 2008). On the other hand, identifying an une-
qual distribution of this kind provides only one piece of the puzzle relating to the
social process of inequality (Young 2001). Therefore, understanding the proc-
ess of accountability in practice requires more in-depth studies which examine
the selection of cases by following all applications made to the European Court
through to the few that are finally examined by Court, and that also include an
analysis of other factors in society that are of relevance for an understanding of
accessibility.
There is reason to discuss further the function of the European Court in relation
to the issue of accountability for those who are victims of state crime. First, how-
ever, we will take a brief look at the second question of accountability, accountability
for what, and at the claims described in the Court’s judgments.
Accountability for what?

In order to better understand the function of the Court from the perspective of
access to accountability, it is worth also looking into the claims of the applicants.
First of all, the applications from the victims appear to include a greater variety of
claims than those that are finally examined by the Court. Of the claims that were
found admissible, claims focused on the right to a fair trial, Article 6, are indisput-
ably the most common (see Table 10.1). This is most marked in relation to the
judgments involving friendly settlements and those where at least one violation had
been found. Drawing on this, it would appear that claims relating to violations of
Article 6 constitute a fruitful means of receiving compensation from the state. The
claims relating to violations of Article 6 appear to be particularly successful when
they are focused on the right to an oral hearing or on the length of the judicial
process, and to be less so when they are focused on the rights to a fair hearing, to
the presumption of innocence and to an independent and impartial tribunal. This
might be linked to the fact that it is easier to establish whether or not a judicial
process may be considered too long or whether an oral hearing should have been
but was not held, than it is to establish that a hearing was unfair. Also, it might be
easier to establish procedural claims, such as violations of the length of the legal
process, than substantive claims, such as violations of someone’s right to respect for
private and family life (see Schoultz 2012), which could explain the dominance of
claims relating to Article 6.
Most of the court proceedings that are the focus of complaints are not crimi-
nal proceedings, but rather involve civil litigation, sometimes between two pri-
vate actors and sometimes between the applicant and the Swedish authorities. The
claims made to the European Court seldom relate to the underlying substantive
issue, such as the right to receive welfare benefit or tax litigation resulting in bank-
ruptcy, but rather to the procedural issues connected to the legal process in the
national courts. With a few exceptions, these claims focus on litigation that has not
gone in the applicant’s favor. Thus the complaint to the European Court may func-
tion as a last resort for obtaining redress. On the other hand, it can be noted that in
most of the judgments relating to Article 6, the claims for monetary damages were
rejected by the Court and instead, in many of the judgments where a violation was
found, the compensation the state was required to pay may be viewed as having
been rather symbolic when compared with the damages claimed by the applicant.
186 Isabel Schoultz
These results raise questions about the function of redress for the applicant. Is the
economic compensation paid by the state important, or does the judgment have
other more important values or functions for the victim? Some judgments did not
award any monetary compensation even though a violation had been found by the
Court or a friendly settlement had been reached. That is the case with the asylum
seekers claiming their right to life would be violated or that they would be at risk of
torture if deported. In these cases it not difficult to imagine than the most important
factor associated with the finding of a violation or with a friendly settlement was
that it involved a confirmation that the applicants would not be deported. In other
cases, such as those relating to Article 6, monetary compensation may be more
important for the applicant. In comparison, research on non-pecuniary damages
for crime victims in Swedish tort law shows that the victims themselves perceived
the significance of the economic compensation to be limited. However, the sig-
nificance of the compensation as a form of recognition for the victim and as a form
of redress scored higher than its significance as a means of restoring the victim’s
self-esteem and alleviating the suffering caused by the crime. Whether the award of
increased levels of compensation by the European Court would provide a greater
feeling of redress for the applicant, or whether the significance of the redress lies
in other values, such as recognition as a victim of state harm, is difficult to tell, and
may furthermore be expected to vary according to the type of claim and the posi-
tion of the applicant.
Examining Table 10.1 again, claims of violations relating to rights other than
those included in Article 6 are examined by the Court, but most of these appear
in only one or a few judgments. It is worth noting that various aspects of discrimi-
nation (Article 14) are not examined at all. Claims of such violations were made
by applicants in one of the cases examined, but these specific claims were found
inadmissible by the Court. One of the Swedish cases might be interesting to dis-
cuss from this point of view. In the application from several Sami villages (Case of
Handölsdalen Sami Village and Others v. Sweden) the application to the European
Court relates to the length of a national judicial process relating to their reindeer
herding rights, and also to effective access to court, with the latter claim being dis-
missed by the European Court. The fact that the Sami villages are communities of
indigenous people is barely mentioned in the judgment until the partially dissenting
opinion of one of the judges presented at the end of the judgment. This judge states
that the Chamber’s reasoning “excluded considerations relating to the specific con-
text of the situation and rights of indigenous peoples” (Case of Handölsdalen Sami
Village and Others v. Sweden). The judge also adds that the Court was not asked to
deal with a claim of discrimination: “However, from the Court’s perspective this
should have been seen as a case of ineffective access to court, particularly as one
party appears to have been obviously disadvantaged.” (Case of Handölsdalen Sami
Village and Others v. Sweden). Instead, in the same way as in other cases, all claims
besides those relating to the length of the judicial process are found inadmissible or
dismissed. The limitations associated with the application of Article 14 have been
noted by other scholars examining cases at the Court from the perspective of racial
discrimination and sex/gender (Dembour 2009, Brayson and Millns 2010). Once
again, the conclusion drawn from looking at these judgments is that they encom-
pass a very limited area.
Conclusion
It is difficult to know to what extent controls of the state actually work to provide
redress for the victims of state crime. In comparison with other forms of controls
by which victims of state crime may seek redress, the European Court could per-
haps be described as highly selective. In other words, the European Court may be
an effective form of redress for certain people with certain types of claims. On the
other hand, other forms of formal controls of the state, both national and inter-
national, also have their limitations. All forms of control produce certain types of
cases, as a result both of their own specific remits and limitations and of individuals’
abilities to invoke accountability (Schoultz 2012). Knowing about one’s rights and
about the opportunities that exist to seek redress may be regarded as a prerequisite
for a functioning control of the state. For example, certain groups in society, such
as those arriving in the country with no identity documents, will find it more dif-
ficult (if not impossible) to make use of the formal control mechanisms. On the
other hand, informal control mechanisms that often appear to publish more pointed
criticisms of the state may be undermined by the very fact that they are informal.
Perhaps the biggest strength of the European Court is its formal role within Europe
in general and in Sweden in particular.
The question of whether the control is sufficient also depends on which per-
spective is chosen to approach the issue. When it comes to the European Court,
its core significance is located in its ability to influence changes in national laws
that are ruled to be in violation of the Convention, rather than in providing com-
pensation to victims (Ma 2000). Also, the process of a friendly settlement serves to
mediate conflicts and attempts to prevent future recurrences, rather than punishing
past behavior (Hurwitz 1981) and compensating victims in retrospect. Following
decisions to reform the Court, its main focus should come to be directed at the
most important and serious cases (and less at repetitive violations), with this change
being intended to address the number of applications pending before the Court
(European Court of Human Rights 2012). These reforms have been criticized by
several human rights organizations, amongst other things because they restrict the
right of individual petition (Open Society Foundations 2012). For the individual
seeking redress, this might mean less opportunity to have one’s case examined by
the Court. For those who have been victims of state crime, the limitations associ-
ated with the process of the Court are naturally a central factor with regard to the
Court’s effectiveness.
It is not possible on the basis of the few judgments examined in this study to
conclude whether the European Court discriminates against certain categories of
applicants. All we can conclude is that the outcome of the control exercised by the
Court has resulted in some form of redress for the victim for a limited group of
188 Isabel Schoultz
people. For those applicants where the Court found a violation or where friendly
settlements were reached, the decision of the European Court may very well have
had a substantial effect. However, it is important to bear in mind that these accounted
for only 44 of the more than 3,000 applications submitted to the Court between the
years 2000 and 2010. In this sense, very few of those who perceive themselves to
have been the victims of human rights violations have been able to obtain redress.
Given these limitations, we cannot use the judgments made by the European Court
to tell us about the victims of state crime any more than we can use data on convicted
street-criminals to tell us about the victims of crime in general. However, the judg-
ments from the Court can tell us about the selection process, whereby some of those
perceived as victims are able to hold the state accountable.
Notes
1 Koivurova (2011: 29) suggests, however, that minorities receive more recognition in
Europe than do indigenous peoples in the more northerly countries, and that this is
in part due to the geographical location of the Sami in Scandinavia or the Inuit in
Greenland.
2 The reader should bear in mind that this category reveals only how the individual is
described in the judgment. Thus an individual described as an asylum-seeker may also be
a bisexual property-owner, but if this latter information is not presented in the judgment
it will not have been noted during the coding process.
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Studies, 13(3), 193–209.
11
THE VICTIMS OF THE
COLOMBIAN CONFLICT AND
RESTORATIVE JUSTICE
Isabella Bueno
Introduction
In over five decades the Colombian conflict has left millions of victims through
widespread and systematic crimes, including kidnapping, forced disappearance,
extrajudicial executions, sexual violence, underage recruitment, massacre and tor-
ture, committed against innocent civilians. Mainly, two left-wing oriented groups,
the FARC (Fuerzas Armadas Revolucionarias de Colombia) and the ELN (Ejército
de Liberación Nacional), and one right-wing group, the AUC (Autodefensas Uni-
das de Colombia, also known as the paramilitaries) are behind these crimes. Over
time, lucrative revenues from illegal activities like drug trafficking, drug taxation,
expropriation and kidnapping, have ended up controlling these groups’ agendas to
the point of distorting their original ideological motivations.
Today, the conflict continues to ravage the country. Although the paramili-
taries put an end to their organisation through a collective demobilisation in 2006,
in which nearly 32,000 combatants handed in more than 18,000 weapons,1 the
FARC and the ELN still operate on Colombian territory. In September 2012,
however, the Santos administration and the FARC confirmed their intention to
start peace talks, which until now had been elusive and had made Colombians
skeptical, due to the FARC’s refusal to admit responsibility for the harms they
have committed. This challenge is compounded by the collusion of politicians,
who have worked behind the scenes supporting illegal groups from both ideologi-
cal orientations. Given these uncertainties, no one can predict the outcome of the
negotiations or if peace will come about, but hopefully they will encourage the
ELN to follow next.
To its credit, despite the fact that the conflict is still ongoing, Colombia has cre-
ated a state-organised transitional justice (TJ) mechanisms. The “Justice and Peace
Law,” adopted in June 21, 2005 by the Colombian Congress, the main objective
192 Isabella Bueno
of which is to “ease the peace negotiations with the armed groups and the indi-
vidual and collective reincorporation of the members into civil life, guaranteeing
that the victims will have the right to truth, justice and reparation” (Article 1,
Law 975/2005), created the “National Reparation and Reconciliation Commis-
sion” as well as special tribunals for “Justice and Peace.” This law established,
on the one hand, a judicial mechanism for victims to obtain reparation and, on
the other, a five- to eight-year prison sentence for offenders considered to have
committed serious violations of human rights. In addition to this historical and
controversial law, Colombia has created other mechanisms of TJ, such as the dis-
armament, demobilisation and reintegration program, administrative reparative
measures, and the “Victim’s Law.” Additionally, in June 2012, a reform to the
Colombian Constitution was made through the “Legal Framework for Peace,”
which aims at facilitating a negotiated solution of the armed conflict through the
adoption of TJ.
Despite the efforts to create and implement such mechanisms during the ongo-
ing conflict, Colombia is still struggling to find the best way to deal with its frequent
mass atrocities. As new mechanisms are created and continuous reforms take place,
the debate on TJ remains highly relevant to victims and offenders, institutions and
the Colombian society. In fact, the question of TJ that refers to “the full range of
processes and mechanisms associated with a society’s attempts to come to terms
with a legacy of large-scale past abuses, in order to ensure accountability, serve
justice and achieve reconciliation” (United Nations, 2004, p. 4) has gone through a
rapid conceptual and procedural evolution. Given the unique particularities of each
society, the processes and mechanisms of TJ “may include both judicial and non-
judicial mechanisms, with differing levels of international involvement (or none
at all) and individual prosecutions, reparations, truth seeking, institutional reform,
vetting and dismissals, or a combination thereof” (United Nations, 2004, p. 4). In
fact, from the Nuremberg trials of 1945 to the creation of the International Crimi-
nal Court (ICC) in 2002, TJ has been marked by a rich variety of mechanisms.
So which approach to justice could better meet the needs of those affected by
the Colombian conflict? Whereas some defend the dominant retributive-oriented
approach implemented via criminal trials, others support restorative justice-ori-
ented ways of doing justice, and therefore defend mechanisms such as Truth and
Reconciliation Commissions (TRC) or local-level TJ mechanisms. Remarkably,
although both the field of TJ and the approach of restorative justice (RJ) have been
thoroughly developed independently, little has been said about their theoretical
and practical coalition. In fact, RJ, developed largely in the field of ordinary crimes,
is increasingly attracting the attention of institutions and practitioners working in
the field of TJ (Parmentier, 2003). As a matter of fact I argue that RJ is more likely
to resolve the issues of TJ, notably, by better incorporating the needs and interests
of the victims of the Colombian conflict. In fact, although the figure of the vic-
tim has progressively gained attention in the discourse of TJ, one wonders if their
voices are seriously taken into account. Are the institutions aware of the dimension
of their suffering? Are they being provided with the means to heal their pain? In
The Colombian conflict and restorative justice 193
this chapter I attempt to show the suffering and difficulties endured by some vic-
tims of the Colombian conflict, as told in their own words, and to explain the way
in which RJ could penetrate the complex TJ process in Colombia so as to better
respond to the needs and interests of the victims.
The voices of the victims

Since this chapter tries to analyse the way in which RJ could be applied to the
Colombian TJ process, the harm inflicted on the victims of the conflict will be
emphasised, as well as the factors that have been helpful in their healing process.
We will thus present the testimonies of some representatives of indigenous com-
munities who have suffered from victimisation, as well as those of some victims of
kidnapping, forced displacement, and murder.2
The perception of harm according to the victims of the

conflict
Feeling “dead, alive”

Individuals live each experience in their own way, and this is no different with the
victims of kidnapping. Many of them went through a harsh experience in which
they were somehow “dead, alive,” away from their loved ones, deprived of free-
dom and living under the shadow of death. When I asked Jorge Luis to tell me
about the way in which the kidnapping had affected his life, he answered: “It means
to die and be reborn 100 percent, it’s like I had a life before the kidnapping, and
then I was dead during 6 months, dead alive, and then I was reborn again.” Along
the same lines, Sócrates thought of taking his life while he was kidnapped, but with
time he realised that surviving was more important: “I thought of committing sui-
cide many times . . . but I overcame all that, everything is behind and one realises
that the only important thing out there is to remain alive, to survive.”
The lack of freedom and the feeling of being stuck in time frustrate the victims
of kidnapping. Matías, for instance, used to get desperate “because time didn’t pass
by.” In his words:
Over there the hours don’t pass by, they crawl, everything is very slow
. . . have you read The Metamorphosis by Kafka? Well, I felt like the beetle,
I used to say to myself “what is this?!” . . . listen, the most precious thing
human beings have after life, is freedom, so, they can smile at you, but you
are attached to a bed, so one cannot say that they treated you well. Uhm,
the experience was extreme, I felt like in those movies of World War II,
one becomes an impressive calculating machine; I counted the steps from
one point to the other . . . I planned everything for the day in which I could
escape.
(Matías)
194 Isabella Bueno
In many cases, family members have a tendency to suffer even more than the
abducted. Gonzalo and Beatriz’s testimonies show how difficult it was for them
having a loved one kidnaped. As Gonzalo notes:
I went nuts, I grabbed my gun, my vest, my pistol and I pretended to go

to the mountain like that, I had become completely crazy; I didn’t know
what I was doing, I had lost every notion of good sense. Uhm, at that point,
someone who I consider today a great friend of mine, a police officer from
the GAULA,3 shook me hard and said something that I’ll never forget. It was
probably the phrase that I needed to hear at that moment. He told me “we
have passed the point in which you solve this with bullets; now, this needs to
be solved with a check book.”
(Gonzalo)
In the same line of thinking, Beatriz notes, “after the kidnapping, he [her kidnapped
husband] overcame the harm better than me, I never overcame it. Never!”
Ilana’s kidnapping experience was very different from the others. She was only
11 years old when she was kidnapped on her way home from school. However,
despite the suffering she experienced during 7 months, Ilana developed a sort
of “Stockholm syndrome” toward the guerrillas and even praised Marxist ideas.
Needless to say, her kidnapping and the new aspects of her personality affected her
family members and Ilana herself:
It was hard because I guess that when you are so small . . . you are easily
influenced, so I let myself go, I was like one of them, I cooked, I would cut
the tree and put the wood on my little back. I got used to their habits, I ate in
a small pan with a spoon, I washed my hair with jabón azul, I even talked like
them. So when I got home everything had changed, my room had changed,
my mum was thinner, my dad was thinner with white hair, my whole family
had lost weight whereas I had gained weight . . . uhm I got here with Marx-
ist communist ideas, well, I got back with an experience that had changed
my life.
(Ilana)
Being obliged to abandon their home

Forced displacement victims have to go through a harsh process of losing every-
thing in a violent way and starting from scratch in an unknown setting, away from
their traditions, their loved ones and in extreme poverty. Often, in spite of the
traumatic departure, their greatest wish is to return one day to their place of origin.
In addition, victims of displacement suffer from another unique form of victimisa-
tion, which doesn’t touch other victims: feeling ashamed.
Moreover, they insist on the difficult process of living in extreme poverty when
dealing with basic human needs such as renting a house, buying food, educating
children; these become an added challenge after having lost everything. In Paulo’s
words: “One could only have the strength to talk, but we really don’t have any-
thing to survive, we are in ‘ceros’ . . . finding ourselves only with faith and God’s
hope.” Along the same lines, Riana explains the limited yet critical role of the
government in assisting the victims of displacement: “They [the government rep-
resentatives] gave us the equivalent of 3 months of food shopping, and then what?
It’s the same with the rent of the house; they pay you 3 months, and then what? If
we don’t find a job, how can we survive?” In fact, victims of forced displacement
are deeply concerned by the precarious situation in which they live. Moreover,
and unlike other victims that I interviewed, the feeling of shame at their situation is
reinforced constantly as they are often treated disrespectfully, with contempt, and
regarded as akin to street beggars. Accordingly, Siena notes:
Yes, I do feel ashamed, embarrassed to be considered as a beggar. You can see

that almost everywhere, as if we were begging! Sometimes people consider
us as criminals . . . I do feel this and it is very strong because I live it, almost
every day.
(Siena)
Furthermore, this tragic condition generally goes together with other forms of
victimisation: Riana, four months pregnant and with young children, was forced
by the guerrillas to leave her house after her husband’s disappearance. This expe-
rience was traumatic for her: “Very harsh, very harsh, that affected me so much
that I even lost consciousness. Sometimes I feel it was my fault because I got
pregnant . . .”. In addition to the pain of losing her husband and going through
the terrible ordeal of abandoning her home, Riana had to separate from her chil-
dren and start a new life in a dangerous neighborhood of unknown strange city:
“I left the younger one with my mother and had to send the two older ones to a
boarding school association in Popayan that helped me a lot while I came to work
in Cali.”
Being collectively prosecuted for more than 500 years

Unlike other victims who were interviewed according to a particular form of vic-
timisation, the indigenous communities were interviewed as a community, which
has been collectively affected by the conflict. In fact, those whom I interviewed
live in the Sierra Nevada de Santa Marta, an astonishing natural park in the north
of Colombia that has been directly subjected to the conflict with the constant pres-
ence of illegally armed groups. Given this situation, the indigenous communities
have repeatedly been the victims of forced displacement and other forms of serious
victimisation like disappearances, executions and rape, among others. However,
and quite remarkably, despite all these obstacles, thinking in terms of the collective
has remained a priority; from their perspective, when a member suffers, the whole
community suffers.
196 Isabella Bueno
Interestingly, when I asked the members of the indigenous communities

about their experiences with the conflict and the way in which they had been
victimised, they went beyond the illegal and legal armed actors of the conflict
and explained how they have always been victimised by the Western mentality.
Correspondingly, Enrique explains how the Arahuacos4 have been brutalised for
more than 500 years:
For more than 500 years we have been victimised physically and mentally
by various actors, call them Catholic Missionaries, Conquistadores, Colonos,
peasants, guerrillas, paramilitaries, and delinquents, all of them inflamed by
their needs, which in one way or another ended the peace in our territory,
amputating our rights as a community.
(Enrique)
In fact, as Dinamo notes, the Western world established its culture and customs by
controlling, exterminating and fighting native peoples:
I believe there was an exterminating political movement to end all cul-

tures . . . even in Colombia, if you check the early records of the DANE5
you will see that the numbers of indigenous registered were very high . . .
Finally the community ended up losing the sense of belonging, they aban-
doned their traditions, they ended up feeling ashamed of their ancestors and
origins, and that’s the reason why today when asked for their cultural back-
grounds they prefer to call themselves ‘farmers’ rather than be identified as
indigenous.
(Dinamo)
The pain of dealing with extermination and losing their spiritual

guides
While explaining the conditions of his father’s dodgy death, the circumstances of
which are still unclear, Dinamo states that his murder was an offense against the
whole Arahuaco community, not just against his family: “In the Sierra Nevada, the
victim is not just the family, we’re all affected by such violent acts as a community.”
This reasoning comes from the fact that the indigenous communities of La Sierra
see themselves as one interrelated “collective subject.” Such a spirit of collective-
ness and belonging, unknown in Western societies, was affirmed and reasserted by
each one of the communities’ representatives. As Dinamo notes:
when you affect the community obviously the effect is general, when for
example they kill a ‘Mamo’6, he who is someone destined to live, how much
does the community really lose? How can you measure the backward state in
the community when one of its leaders is murdered?
(Dinamo)
Healing the pain of the victims

Many factors help to overcome the ordeal of being kidnapped, displaced, losing a
loved one, or being subjected to a long-lasting extermination policy. Among these
factors, the love and support of family and friends, a strong sense of spirituality,
receiving psychological assistance, and knowing the truth behind the facts have
been greatly extoled by participants as helping their healing process.
The love and assistance of loved ones

Friends and family become essential in the healing process of victims of mass atroci-
ties. Relatives act as a needed moral support and, as is seen particularly in the case of
single mothers, they become the sole financial support. In addition, family becomes
the biggest motivation for success, and for kidnapped victims, the strongest reason
to struggle for life during the victimisation. When I asked Sócrates how he over-
came his 7 traumatic years of kidnapping and the tragic death of his colleagues, he
answered:
With the love of the family, coming back, the love of the family, life’s
opportunities. You get to appreciate an evening, a morning, friendship,
everything, you get to value things. Every little thing becomes a source of
happiness; the rest stays behind, you have to move on.
(Sócrates)
So family is essential in moral terms, and also economically and for general guiding
support. Ariana’s family helped her in every sense when her husband died:
The family members got together and helped me so much! Mainly economi-
cally, with food, with money to buy the child’s school materials. They took
care of the little one while I was working. Both my family and his, they
helped me!
(Ariana)
The power of spirituality and values

Spirituality has proven useful in the healing process. For many, not only does
spirituality provide strength during deep distress and sorrow, but it represents an
important healing tool and source of power. God, the Mamo, religion, or values
usually play a crucial and necessary role in overcoming a traumatic experience.
While acknowledging feeling the urge of revenge, Sócrates highlights the impor-
tance of faith in overcoming his feelings of anger:
Faith helps. I put everything in the hands of God. Little by little I started to
purify myself, understanding forgiveness in Christian terms as putting aside
198 Isabella Bueno
hatred and revenge, and understanding that we were in the middle of an

armed conflict, that we were victims and we needed to understand this but
never justify what they were doing with us . . . If a kidnapping is difficult
having God, I could not even imagine how would it be without God! Ter-
rible, it must be terrible!
(Sócrates)
Likewise, when I asked Ligia if she had feelings of revenge, she said: “No, no,
no, I thank God . . . I just prayed to God because he is the only One who knows
why this happened, I have put everything in the hands of God.” Similarly, spiritual
life, and particularly the contact with God, helped Jorge Luis to become patient and
alleviated the oppressiveness of the kidnapping:
The contact with God, with a superior being, with faith . . . physically speak-
ing one is powerless, one only has the head, the being and the faith in God,
so this helped me to become patient . . . Spirituality, not religion, together
with the prayers of my family, kept me alive.
(Jorge Luis)
Ilana also strengthened her faith in God through this experience. In fact, she
always remained calm during her abduction, thanks to her faith in God:
I believed I was going to come out of there, I was always very calm, I prayed.
Over there no one believes in God because they are Communists and Marx-
ists, so believing in God is shameful . . . Today I am much more spiritual, I
think these situations strengthen your faith. I know that was one of the most
difficult experiences in my life, but I also know it won’t be the only one.
So it’s good to be prepared for that and avoid saying “God, why are you so
unfair?”
(Ilana)
From a different perspective, a very deep and particular Cosmo-vision and spir-
ituality is part of the daily life of the indigenous communities of the Sierra Nevada
de Santa Marta. For instance, the Mamo has played an incredible role in maintain-
ing and protecting the culture and traditions of the community, and this despite
all the Western obstacles previously mentioned. Summarising the reasons behind
the cultural protection, Dinamo argues: “We still have our traditions; we are so
lucky to have the Mamo! They have kept up our tradition, our knowledge and
this is precisely what has helped us in facing any problem.” Spirituality has not only
been essential in keeping the indigenous culture alive, but has been crucial in the
healing process of those who have undergone different forms of victimisation. As
Amandino notes: “The greatest support an indígena can have is spiritual guidance.
That’s the best path to overcome any catastrophe.” Likewise, Constantino argues:
“Restoration has to take place in two dimensions: in the material one and in the
spiritual one.”
Sharing with others

Although many victims have not received psychological assistance, they would like
to, and they consider it important to receive personal treatment because, as Ingrid
argues: “Everyone has their own universe, their story, their pain.” Ligia was so
deeply affected by the loss of her husband that when I asked her if she would like
to receive psychological help, she answered:
I would like to, but I would have preferred it right after being victimised
because everyone at home told me that I seemed crazy. I didn’t even want
to open the door to anyone, I thought they would come to kill me and my
daughters.
(Ligia)
Jorge Luis has worked with psychologists to heal his harm and, particularly, to
forgive offenders. According to him, forgiveness would help him erase “destructive
emotions”:
When I found freedom I said to myself, “well, this has already passed!” But
I realised with a psychologist for the first time that shit! this had marked me!
It touched me, it shocked me. So we worked on forgiveness because uncon-
sciously I had developed destructive emotions that I needed to heal.
(Jorge Luis)
Moreover, whereas some victims consider it fruitful to dialogue with other

victims about what they have gone through, either because of curiosity, for relief,
or to compare their victimisation with others, some would prefer to avoid such
encounters for security reasons. According to Amandino, it helps “not only to dia-
logue but to get to know victims better and mutually support each other to move
on.” Sergio would also like to meet with other victims:
Yes, I think a time to share with others would be convenient. You could
learn how to deal with the pain. Sometimes you think you have gone
through the most terrible experience and then you realise that others have
gone through worse and have overcome it, so I think it would be very
important.
(Sergio)
Moreover, some victims do already meet with other victims to discuss together.
This is the case of Matías, Adolfo, and Alejandro who have in fact met with other
victims of a kidnapping after being released. Today they have built a good group
200 Isabella Bueno
of friends and see each other periodically. According to Matías, “you look for that
meeting time automatically . . . I like it, I don’t know if it’s for curiosity or to feel
that I am not the only one . . .”
However, Ingrid would prefer to avoid meeting with other victims, for security
reasons:
I don’t know . . . personally I don’t think so because I’m paranoid, I don’t

know who is who and I always think that if those people get information
they can do something to me or to my daughter. However, I do think psy-
chological help would be good because I haven’t been able to close that
chapter of my life.
(Ingrid)
Participating in a deep periodical healing program may help some victims heal
their pain. In 2009 a program was established with victims of forced displacement
in a poor neighborhood of Cali, Aguablanca. This program attempted to heal the
pain of 10 displaced victims, some of which had gone through other forms of vic-
timisation like having a loved one disappear, be recruited by illegal armed groups,
or be violently murdered. The program lasted for a year, during which the victims,
their family members, and the coordinators, Margarita and Juan, met periodically.
It yielded great results and showed that a sound program should involve competent
professionals, try to build relationships among participants, offer a space for partici-
pants to express themselves and listen to everyone’s stories, try to connect them
to their roots in order to develop a feeling of belonging, promote an optimistic
philosophy of life, and deal with the issue of forgiveness, among others.
Obviously, not everybody has the ability or training to work with victims of
massive crimes and obtain positive restorative results. Besides being profession-
ally capable, Margarita and Juan showed reliability and a caring involvement that
went beyond traditional programs. In fact, many of the victims had participated
in programs before but, as we shall see, according to them, this one was special.
According to Paulo:
Margarita and Juan are engraved in our minds, in our hearts, for being per-
sons of high idiosyncrasy who could easily explain to others, with such cha-
risma, such spirit. They have received a divine gift from God and I would
like to continue to share with them.
(Paulo)
When referring to the affection extended by Juan, Mali notes: “So much! Just
calling him and seeing that beautiful way of being, you feel like having family, you
feel so happy when approaching each meeting. My older daughter used to tell me
‘mami, your professor is so chévere (cool)!’”
One of the objectives of this program was to teach victims another way of inter-
preting suffering and how to gain the strength to overcome, or at least reduce, this
painful experience. Introducing a different and optimistic philosophy of life was

crucial in overcoming the “status of victim.” For instance, Beto notes:
The program helped me in a very special way. I was blocked . . . they taught
us about our roots, our elders, our families, many important things. Violence
has brought to us so much suffering that you don’t know where to go, what
to do, you have no knowledge, but they do, they taught us how to begin to
forget about the conflict, have a new life, leave things behind while acknowl-
edging that one has family . . . it was helpful to heal ourselves, to heal others,
I have loved this so much!
(Beto)
Moreover, Margarita and Juan’s program also aimed to heal the suffering caused to
victims by the wish for revenge on their offenders. Riana, who was looking for retali-
ation, notes, “they made me see that (as well) and thanks to them [Margarita and Juan]
I understood the value of forgiveness despite their [offenders’] crimes.” I asked her if
she would be ready to forgive and she answered: “No, I have already forgiven . . . I
thank God because resentment doesn’t do any good, it just increases violence because it
would go to my children or my children’s children. They made me see that.”
In addition, participants built up very strong bonds of friendship and compan-
ionship among themselves. Their past and their feelings of sadness and happiness
were revealed and made known to each other. Common sharing was extremely
helpful in various ways, particularly in seeing that they were not alone in their grief
and that they could count on others, either friends or, surprisingly, ancestors, to
find strength and overcome difficulties. As Riana notes:
We got to know each other through dialogue and I realised that I am not
the only one to have problems, the others also did, and even tougher ones. It
helped us to unburden ourselves and to get to know each other’s problems.
(Riana)
Similarly, Mali agrees that listening to others’ stories, sometimes worse than
hers, helped her realise that she was not the only one who suffered:
When I listened to my friends’ stories I realised, ‘man, my problem is nothing

compared to Beto’s, at least!’ . . . There are others who have suffered more,
and that doesn’t make me happy, but it helps me get strength and say there
are others who suffer more.
(Mali)
Healing through institutional assistance

After studying the various personal variables that contribute in the healing proc-
ess of the victims of the Colombian conflict, those elements that may need the
202 Isabella Bueno
intervention of the state will be now analysed. Among these factors there is the encoun-
ter with offenders and some issues of TJ, such as truth and economic reparation.
Meeting the offender? (The encounter)

The encounter between victims and offenders played a key role in RJ. I wanted,
therefore, to analyse the attitudes of victims towards an eventual meeting with
offenders. In fact, whereas some victims would refuse to meet with offenders,
others wanted to do so.
Among the reasons why many preferred to avoid such an encounter were appre-
hensive of the consequences of meeting offenders, fear of reliving the trauma, or
simply a lack of interest in meeting. When asked if he would like to participate in
a process of justice with the offenders, Gonzalo exclaimed:
Never, never, for me that’s a closed chapter in my life, and if I had to meet
them, although I wouldn’t like to, I would let them know that I have for-
given all the suffering and resentment they made me go through.
(Gonzalo)
From a different perspective, Ariana would like to see the offender on screen,
but not personally, she would be too afraid. Moreover, according to Amandino,
meeting the offender would not be worth it: “I don’t see the need of receiving an
apology, or being told ‘I was wrong.’ The harm has already been done.” Along the
same line and without further explanation, Sergio simply would not like to meet
the offender: “No, personally I wouldn’t, I have seen him through the camera . . .
I’m not looking for revenge, but I wouldn’t like to meet him.”
On the other hand, some of the victims gave their reasons why they would want
to meet with offenders: to understand the why, who, and how the offenders commit-
ted atrocities, to share their suffering and to make them realise the impacts of massive
crimes. Álvaro and Ingrid would like to meet with the offender, to hear “why he killed
the boy” (Álvaro) and “to have his version of the facts” (Ingrid). Similarly, Olivo would
“obviously” like to meet the offenders to know “what, who and why they did it.” In
addition, he would also like to know “if it was the victim’s or the offender’s fault.”
Knowing the truth behind the facts?

Unveiling the truth of the facts has always been of great importance in the field of
TJ. However, although many victims consider knowing the truth of the facts an
essential tool in their healing process, others, particularly the members of indig-
enous communities, have no interest in uncovering it.
For instance, some victims believe that revealing the truth is important to
understand Colombian society and to inform its citizens about the reality behind
the conflict. When Sócrates was asked if he considered it important to know the
truth in order to heal his pain, he answered:
I think so. It means to admit to ourselves the type of society we live in, to
observe it: Who are we? Where do we come from? Why do we act this way?
Even if this truth is harsh it would be useful to create clear criteria of our
society.
(Sócrates)
According to him, mentioning the declarations given by H.H,7 there is an unknown

truth in Colombia:
Behind each material murderer, behind the masacradores, there were important
people from Colombian society, businessmen, stockbreeders who remained
untouched . . . The real murderers who gave orders were representatives of
the Colombian ruling class. The paramilitaries got extradited before they
confessed who was involved.
(Sócrates)
From another point of view, Adolfo considers it extremely important to inform

the international community, particularly Europeans, about the reality of the
Colombian conflict: “There is great interest in uncovering the reality of things,
especially in Europe, because there are a lot of people, I guess with good inten-
tions, who still defend the guerrillas.” In fact, the victims of kidnappings frequently
criticise non-governmental organizations (NGOs) and foreign countries that still
consider guerrillas a kind of collective “Robin Hood.”
Uncovering the truth behind the facts is important for some. Riana, for exam-
ple, was told to look for her dead husband in the river, meaning that he was killed
and thrown into the river, but nonetheless she wants to hear directly from the
offenders what happened: “I would like to know if he was killed immediately . . . I
would like to hear the truth . . .” This desire to know the truth behind the facts is
shared by many victims who still haven’t heard the story regarding their loved ones’
deaths. Accordingly, Ingrid notes:
I want to know everything, I want names, I want to know how much they
gained by my husband’s death . . . because I think that there are many people
having fun with the money they gained. I want those people to pay in prison
for all the harm they have caused.
(Ingrid)
On the other hand, there are those who consider that uncovering the truth is
not worthwhile. According to Dinamo, “what has been done, has been done; the
person is already dead . . .” Similarly, Antonio considers that “there’s nothing else
to be known, the harm has already been done.” Constantino further justifies that
there is no purpose behind the discourse about the truth, which has become wide-
spread in Colombia:
204 Isabella Bueno
I really do not understand why offenders have to tell the truth, and just the
truth. Well, apparently that helps to clarify things, but I think it’s a very
hypothetical concept, so uncertain. Personally, I do not believe in that topic
of “political truth” . . .
(Constantino)
Obtaining economic reparation

It was interesting to observe that on the subject of reparations, each group of vic-
tims attaches importance to different aspects. For example, unlike displaced victims
and the victims of poverty, victims of kidnappings do not give much importance
to economic reparation. Accordingly, Gonzalo finds money important, but not
for him or his family, but to compensate those who really need financial assist-
ance: “Considering they can’t put things as they were before, giving some sort of
compensation helps, something symbolic like money, these gifts help alleviate the
pain of the victims that went through all that suffering.” When I asked him if he
had received any financial reparation, he said: “Never, and it doesn’t interest me. If
one day I receive a cent, it would go directly to the hands of some soldier’s widow,
whose husband died in the battlefield fighting so we could have some peace.” If
Gonzalo got compensation money, he would like “to give it right away to that
poor woman or her child who might not even have the means for education.” On
the other hand, victims of displacement consider housing and financial aid crucial
to their healing process. According to Sienna, for example:
To start feeling better I would like to get a place to live, some financial sup-
port to have a dignified life, to finance my children’s education so they can
become professionals here in Cali and say “well, we couldn’t go back to
Buenaventura but we have achieved something.”
(Siena)
Restorative justice: an option for the victims of the

Colombian conflict
After analysing the theoretical and practical combination of TJ and RJ, I will explain
the way in which the latter could be applied in Colombia to better meet the needs
and interests of victims.
The growing interest in “restorative transitional justice”

The concept of RJ re-emerged in the late 1970s as an attempt to address some
of the limitations of the conventional retributive approach – an antiquated sys-
tem based on “the abstract philosophical and metaphysical notions of the Age of
Enlightenment” (Fattah, 2002, p. 309); a system capable of intensifying conflicts
instead of encouraging peace (Zehr, 2002a). In fact, although there are multiple
understandings of RJ, advocates of this paradigm argue that the conventional jus-
tice system does not meet the needs and interests of victims, perpetrators and com-
munities, and therefore propose a justice model more adept at finding solutions
to these issues. Likewise, RJ has entered the discourse of TJ with the intention
of finding better ways to address massive crimes by limiting the weaknesses of the
dominant retributive system.
The needs and interests of victims in the criminal justice system regarding ordi-
nary crimes have been considerably left behind. Surprisingly enough, the victim
case scenario hasn’t improved in cases of mass atrocity, principally in processes
that have passed through to international criminal tribunals. In fact, despite the
differences in dealing with common crimes and mass atrocities, the way in which
national, international or mixed criminal tribunals deal with issues of TJ is based on
the system used by national criminal trials to deal with common crimes. Accord-
ingly, Drumbl notes, “the structure, rules, and methodologies of the process and
punishment of extraordinary international criminality constitute a transplant of the
structure, rules and methodologies of ordinary criminal process and punishment in
those states that dominate the international order” (Drumbl, 2007, p. 23).
Mutual cooperation between transitional justice and restorative

justice
Surprisingly, although both the field of TJ and the RJ approach have been exten-
sively developed as independent areas of study, little has been said about the room
for mutual cooperation (Llewellyn, 2007). RJ advocates who have written pro-
fusely on the theory and practice of this approach, with regard to common crimes,
insist on the added value that RJ has in addressing mass atrocities. In Zehr’s words,
“the need for restorative approaches is especially clear in severe cases” (Zehr, 2002a,
p. 11). In fact, as Stovel notes, dealing with serious violations in a restorative way
would be worth it since:
It is the form of justice most directly concerned with reconciliation. It

addresses the redeeming and symbiotic needs of both victims and most per-
petrators. In poor countries with weak judicial systems, it offers an alternative
to lengthy and expensive trials. And in much of Africa, it draws on pre-exist-
ing RJ traditions and institutions.
(Stovel, 2003, p. 1)
In fact, the rare literature on the association between RJ and TJ refers mainly to
the influential work of some restorative-oriented mechanisms that have operated in
TJ contexts, notably the renowned South African TRC and the Rwandan “gacaca
courts.” However, although both mechanisms contain restorative components,
which explains their general assimilation to RJ, they do comprise non restora-
tive-oriented elements and even retributive ones. For instance, the South African
TRC, a self-declared instrument of RJ (Truth and Reconciliation Commission of
206 Isabella Bueno
South Africa Report, 1998), has been praised for its contribution to an innovative
form of accountability based on the absence of retribution in exchange for truth.
Moreover, this institution provided a space for victims to tell their stories, to be
acknowledged, and even to be compensated (Llewellyn and Howse, 1999), and
also the possibility of providing a larger sociological explanation of past abuses and
efforts to promote trust-building and reconciliation. However, the TRC had its
limitations: according to Stovel, trust-building would have required “white South
Africans to take responsibility and atone for their support for apartheid” (Stovel
2003, p. 6). Likewise, gacaca courts provide an example of a combination of restora-
tive and retributive elements such as acknowledgments and accusations, forgiveness
and punishment, community service and prison sentences (Waldorf, 2010).
So, apart from the literature based on this type of restorative-oriented mecha-
nisms, little has been said about the theoretical and practical coalition between RJ
and TJ.
Conceptualising “restorative transitional justice (RTJ)”

As previously stated, RJ re-appeared in the late 1970s to offer a different way of
looking at criminality and dealing with its challenges. Aside from focusing on the
victim by trying to meet his or her interests and needs, RJ encourages an active,
constructive and future-oriented form of accountability. Although the focus is
not on restorative accountability, the restorative approach offers a means for the
offender to reintegrate into society in exchange for his or her active contribution in
repairing directly or indirectly the harm inflicted on the victim, on society and on
him or herself, through reparative measures like full disclosure of the past, devo-
lution of illegally obtained goods, cessation of criminal activities, and other such
measures. In other words, RJ takes away the intention to inflict punishment on the
offender (Walgrave, 2008) in exchange for an active participation in redressing the
harm done and an end to these offenses. Nevertheless, if the offender is not willing
to execute these obligations, he or she should be deprived of freedom, although in
a humane and restorative way. Furthermore, a restorative model of justice should
be flexible, participatory and governed by principles and values such as respect, love
and humility (Bueno, 2013, p. 99).
Thus, if the model contains the characteristics mentioned above, it is restora-
tive-oriented, independently of its international, national or traditional nature. In
other words, a genuine RTJ mechanism would be the one that intends to restore
the massive harm caused by an offense and, consequently, find solutions to the
listed weaknesses of the conventional legal system.
Having said this, the coalescing of RJ and TJ or “RTJ,” as Bueno has termed
it, is defined as “the variety of processes and mechanisms established to restore, to
the greatest extent possible, the individual and social harm caused by mass abuses”
(Bueno, 2013). The issues of TJ would therefore aim at redressing the harm com-
mitted through mass atrocities. Truth would thus be a conduit to restoration and
acknowledgment instead of one towards punishment and stigmatisation. Like-
wise, restorative accountability would avoid inflicting intentional punishment and

instead tie accountability with restoration and reintegration, through measures such
as truth, community service, symbolic action and compensation, among others.
Dealing with the pain of the victims of the Colombian

conflict in a restorative way
How could RJ be applied in Colombia? Colombia has developed great interest in
RJ as an instrument to develop and improve the traditional legalistic approach to
justice. In addition to having been introduced into the Colombian Political Con-
stitution and the Code of Criminal Procedure, RJ has been thought of as a progres-
sive and effective way to deal with serious violations of human rights caused by the
ongoing internal conflict. The effort in coalescing RJ and TJ was tangibly seen in
the government’s first draft of the Bill known as the “Law on Alternative Sentenc-
ing” (Law 085 of 2003), which intended to introduce a restorative approach to the
TJ process and, notably, replace prison sentences with other forms of accountabil-
ity. However, this legal framework was rapidly withdrawn because, according to
some, it was a type of impunity (Felipe Gómez, 2010).
In fact, RJ was not recognised and accepted as might have been expected; most
likely, the strong influence of the retributive approach, particularly represented by
the ICC at the international level, affected the implementation of RJ in Colombia.
Nevertheless, this restorative vision of justice remains of vital importance to the
Colombian TJ process, giving it an improved outcome. As a result, based on the
literature study and the empirical data, I would like to explain the way in which
RJ could be applied in Colombia as a means to heal the harm inflicted on the
victims.
One of the main reasons to focus on restoring the harm done is because mass
atrocities produce mass trauma. Fifty years of conflict have created millions of trau-
matised Colombian victims and offenders. Despite the country’s efforts to imple-
ment TJ mechanisms in the middle of a conflict and under the pressure of the ICC,
we argue that further redressing of the individual and social harm should take place
in order to stop the cycle of violence, through RTJ mechanisms. Given the over-
whelming numbers for violence and casualties in Colombia, restoration should take
place on a massive scale.
So how could the harm inflicted on the victims of the Colombian conflict
be repaired? As we have seen, for many victims of the conflict, the expression
“violation of human rights” doesn’t begin to describe the horrors they have lived
through. Even after years have passed, victims still suffer from severe and deplorable
levels of trauma, anxiety and depression.
Victimisation is often perceived differently from one victim to another, and
the issues of TJ are no different. However, one can find common factors among
the victims who have been through the same form of victimisation. For example,
above all else, displaced victims want financial aid to get their lives back together
and to restore their dignity; they find themselves in a situation of extreme poverty
208 Isabella Bueno
and it is imperative for them not to be seen as “beggars.” From a different perspec-
tive, the victims of kidnapping for ransom want acknowledgment of their painful
experience, particularly by the international community, including NGOs. This
forms a pattern when one considers that many kidnapping victims strongly disap-
prove of the “Robin Hood” picture that some NGOs and European countries
have of the guerrillas, sometimes even ignoring their drug-trafficking activities.
Data shows that, frequently, the visions of truth, accountability, reparation
and reconciliation are directly linked to the victims’ forms of victimization. For
instance, victims whose loved ones were murdered or disappeared have a pressing
need to know the truth and the details of the offense – the reasons why, how it took
place, when, etc. – in order for them to move on. For the victims of kidnappings it
is more about uncovering the truth globally behind the illegal armed organisations.
Conversely, for some of the members of indigenous communities, truth is insig-
nificant; for them, what has been done is already done and uncovering the details
of the facts would not help in the healing process.
As a result, in order to meet victims’ needs, TJ mechanisms should be adapt-
able and flexible. Therefore, it seems fundamental for the existing TJ mechanisms
in Colombia, notably the Justice and Peace Law tribunals, the administrative form
of reparation and the Victim’s Law, to properly meet the needs of participants and
improve the accessibility and complexity of the process, in order to make it easier
for the victim seeking justice. Although many important efforts have been made by
the state, the victims often get lost in the process and may even lack the financial
means and information to reach the relevant institutions.
Moreover, Colombia should offer to those in need an intensive and periodical
healing program at the local or community level, in addition to financial repara-
tion and land restitution. As previously noted, the results of the Aguablanca pro-
gram were decidedly positive: the victims felt respected and acknowledged, and the
importance of family and friends as key participants in the process of healing from
mass atrocities was proven. We believe therefore that family members should be
included in these healing programs, but only with the victim’s approval.
For thousands of victims like the displaced participants of this program, who
were forced to leave behind everything they owned and knew, building new rela-
tionships in the community was fundamental to start their healing process. In fact
victims need to rebuild their network, gain trust with new individuals and freely
express themselves in order to have the feeling that they belong and count and
didn’t deserve what happened to them. We could even think of implementing
local peace-making circles involving victims and offenders, with the supervision of
professionals and local authorities to guarantee the security of participants who are
willing to take a part in the encounter.
Reintegrating offenders is also one of the goals of TJ, and although we agree
that this is very important, the first purpose should remain to identify the harm
done to the victims and to try to redress it. Many Colombian victims reproach
the assistance and opportunities given to offenders, whereas they haven’t received
very much of either. In such restorative programs as the Aguablanca one, victims
learn how to treat their negative and retributive feelings of anger, bitterness and the
desire for revenge, in many cases achieving impressive results. This will effectively
help to halt violence. In fact, according to some offenders, feelings of hatred were
an essential element and encouragement in the fight against the enemy and further
promoting violence. In their urge to seek revenge, many victims joined illegal
organizations and became offenders themselves.
Whereas achieving a perfectly balanced justice system in which each party is
completely satisfied is extremely difficult, satisfying the victim’s dignity through
public acknowledgment is not. Victims in Colombia wish to be part of the TJ
system and to be seriously taken into account; they need their suffering to be recog-
nised. The Colombian government has made great efforts in creating mechanisms
for restoration, but it definitely lacks a macro-level institution, like a truth com-
mission, where acknowledgment could take place publicly: a place where victims
could tell their stories, share their visions and perceptions of the conflict, and which
has an influential role at the government, military or business level, and with other
countries, the ICC and NGOs.
This TRC or Restorative Commission should be impartial and independent,
and accessible to spiritual indigenous leaders, scholars, victims and other leaders and
moral figures belonging to the different communities. An important question that
arises is: should this institution organise meetings between victims and offenders?
Despite the key role that encounters have played in the field of RJ, some victims
and offenders of the Colombian conflict would like to meet with their respective
offenders and victims, but others would prefer to avoid it for security or emotional
reasons. This type of meeting, aside from the logistical difficulty, would require
extreme security measures. Nevertheless, such challenges shouldn’t hamper the
creation of a commission that could carry out indirect mediations or dialogues in
which the identity of participants (at least that of victims) is kept hidden.
The aim of this commission should be to lead a constructive and respectful dia-
logue amongst the participants and at the same time guarantee their personal safety,
and to assure a healthy environment in which to rebuild trust among Colombians
and reconcile the parties of the conflict. This institution should provide a demo-
cratic space for victims and offenders to respectfully and constructively recount
their experiences, thoughts and emotions; a space where the various indigenous
communities could explain how much they have suffered because of the Western
mentality and how their suffering could be redressed; where the victims of kidnap-
pings could explain to the NGOs why they don’t share their views concerning
guerrillas, how they have suffered from this international “misinformation” and
give their point of view; where Colombians could express to the international
community how much they have suffered from the business of cocaine and the
urgent need to find a solution to its trade; where low-level offenders could explain
to Colombians in what way they were also victims of the conflict, and to high-level
offenders how much they suffered from their orders and power; where Colombian
citizens could express their irritation against corrupt politicians; where the state
and those who participated in the conflict through complicity and support, notably
210 Isabella Bueno
businessmen and industrialists, could constructively acknowledge and assume their

responsibility in the conflict.
Conclusion
So, if Colombia is committed to introducing RJ during its complex TJ process, it
could start by creating flexible mechanisms capable of effectively meeting the needs
and interests of victims. In addition to increasing the restorative nature of the exist-
ing TJ mechanisms, Colombia could abet the healing process through programs at
the local or community level for those in need, and a wide-ranging institution such
as a TRC or a restorative commission.
Notes
1 See http://ictj.org/sites/default/files/ICTJ-DDR-Colombia-CaseStudy-2009-English.
pdf.
2 These interviews were conducted with the victims of the Colombian conflict in 2009
and 2010. Isabella Bueno’s doctoral thesis at Katholieke Universiteit Leuven (published
work).
3 GAULA stands for Grupos de Acción Unificada por la Libertad Personal (Unified Action
Groups for Personal Liberty). This institution is exclusively dedicated to combating the
issue of kidnapping and extortion in Colombia.
4 An indigenous group from the Sierra Nevada de Santa Marta, Colombia.
5 DANE stands for Departamento Administrativo Nacional de Estadística.
6 The spiritual leader of the Arhuacos.
7 Former AUC commander Ever Veloza García, alias H.H.
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12
INSTITUTIONAL AND
STRUCTURAL VICTIMISATION
Apartheid South Africa
Robert Peacock
Introduction
The crime of apartheid was defined by the 2002 Rome Statute of the International
Criminal Court as inhumane acts of a character similar to other crimes against
humanity ‘committed in the context of an institutionalized regime of systematic
oppression and domination by one racial group over any other racial group or
groups and committed with the intention of maintaining that regime’. The white
supremacist policy of racial domination, oppression and segregation was institu-
tionalised in South Africa through a plethora of laws demonstrating how laws are
formulated in the interests of those in power. Apartheid legislation had as its aim
to permeate, control and distort all facets of life in South Africa and, through
criminal justice as its agent, the apartheid regime orchestrated the most inhumane
racial oppression. In addition to gross human rights violations under state security
legislation (detention without trial, torture and killings) research showed (Peacock,
1991; Shaw, 1996; Slabbert, 1980) that during this time of racial oppression South
Africa had the highest prison population per capita in the world, of which 80
per cent were short-term prisoners – most of them incarcerated under the pass
laws. Pass laws, or the enforced physical segregation between different racial groups
and restriction of the movement of Africans in so-called ‘white only areas’, illus-
trate that which constitutes ‘unacceptable social injuries’ and ‘acceptable controls’
are relative notions shaped by the underlying constructions of social organisation,
namely the production and distribution of economic, political and cultural capital
(Barak, Flavin and Leighton, 2001). At the heart of the massive violations of human
rights within the apartheid state was the need for a cheap and a readily available
supply of labour to ensure the continued exploitation of the country’s great mineral
wealth by the white elite. The success of the diamond and gold mines was made
possible by the systematic dispossession, impoverishment and proletarianisation by
the African population (Hansson and Van Zyl Smit, 1990).
Institutional and structural victimisation 213
For the disenfranchised in apartheid South Africa, totalising constructions of

race translated into the application of legal relativism and criminal justice brutal-
ity. However, it would be misguided to view inequalities in crime control and
justice to be only the preserve of colonial and apartheid South Africa. Social con-
structions/stereotypes of class, race, age, gender and sexual orientation continue to
underscore criminal justice responses elsewhere in the world, in the service of the
politics of law and order (Peacock, 2013; Siegel, 2004).
Within a broader socio-political framework of colonisation and institutional
imperialism, the following discussion will focus on a critical engagement with con-
cepts of law, but also on notions of healing, empowerment and reconciliation in
post-apartheid South Africa. To clarify context it is necessary first to provide an
overview of the legislative framework of apartheid, a crime against humanity.
Legislative framework
The roots of apartheid can be traced back to South Africa’s colonial era when, in
1652, Jan van Riebeeck from the Dutch East India Trading Company founded a
permanent settlement in the Cape of Good Hope. Through farming, the settle-
ment served as a supply station for maritime traffic around the Cape of Good Hope
(Lansing and King, 1998). In 1795 the Cape colony was seized by the British,
then recovered by the Dutch and seized again by the British in 1806. Since its first
colonisation, and with the aid of slavery, a long history was established of white
dominance over Africans in this region (Ellian, 2003; Loomba, 2005). Diamonds
were discovered in the Orange Free State in 1867 and gold was discovered in 1885.
Tensions between the British and Afrikaners increased, and culminated into the
Boer War from which the British emerged as victors. Subsequently, in 1910 the
Union of South Africa was established as a dominion of the British Empire (Lansing
and King, 1998).
In the service of invasion and colonisation, the greatest historical act of state
lawlessness in South Africa had been the introduction of the Act of Union by the
British Parliament. State conduct may be viewed as lawless – even if it is ‘legal’ – if
the exercise of state power is unconstrained by any limits or by any control by an
independent system of judicial power. One of the critical elements of the rule of
law is that the law should be reasonable and predictable, allowing the subject to
know what conduct is demanded and what criterion will be followed in applying
the power of the state. Arbitrary power may therefore be legal but remains funda-
mentally lawless. To demonstrate, Cecil John Rhodes, an architect of the future
Union (in Hansson and VanZyl Smit, 1990: p. 18) stated the following in the Cape
Parliament in 1887:
I will lay down my own policy on this Native question. Either you have to
receive them on an equal footing as citizens or to call them a subject race. I
have made up my mind that there must be class legislation, that there must be
Pass Laws and Peace Preservation Acts, and that we have to treat Natives where
214 Robert Peacock
they are in a state of barbarism, in a different way to ourselves. We are to be

the lords over them. These are my politics and these are the politics of South
Africa. The Native is to be treated as a child and denied the franchise; he is to
be denied liquor also. We must adopt a system of despotism such as works so
well in India, in our relations with the barbarians of South Africa. We have
given them no share in the government – and I think quite rightly so.
In 1911 the Mines and Works Act was passed that, as part of the British Union,
reserved skilled jobs in mines for whites; and in 1913 the infamous Land Act was
passed. Rhodes, the agent of British oppression and imperialism, explained the
purpose of the Land Act as follows:
Every Black man cannot have three acres and a cow. We have to face the
question and it must be brought home to them that in the future nine-
tenths of them will have to spend their lives in daily labour, in physical
work, manual labour. They never go out to work. It is our duty as a gov-
ernment to remove these poor children from this life of sloth and laziness
and to give them some gentle stimulus to come forth and find out the
dignity of labour.
(In Hansson and VanZyl Smit, 1990: p. 19)
The Land Act and labour law reduced blacks to a state of rightlessness and
poverty, pushing them from their homes into mines and farms were their labour
was required, and then drove them back to the Native Reserves when either their
labour was no longer required or they were unable to perform anymore and thus
became expendable. State lawlessness was thus part of British occupation, but the
term apartheid (from the Afrikaans word ‘apartness’) only emerged as a political
slogan of the National Party in the early 1940s (Oomen, 2005). When the Afri-
kaner Nationalists came to power in 1948, the white supremacist policy of racial
domination and segregation of the British was further institutionalised through an
abundance of laws (Peacock, 2011):
• The Population Registration Act (Act No 30 of 1950) that formalised racial

classification can be referred to as the first ‘grand’ apartheid law that classified
all South Africans into one of four racial categories: Bantu (black African),
white, ‘Coloured’ (of mixed race) and Asian (Indians and Pakistanis). This clas-
sification led to the creation of a national register in which every person’s race
was recorded. A Race Classification Board took the final decision on what a
person’s race was in ‘disputed’ cases.
• The Group Areas Act (Act 41 of 1950) enforced the physical separation
between races by creating different residential areas for different races. This
led to the forced removals of individuals and communities who were living in
‘wrong’ areas, for example, those individuals from mixed racial descent, i.e.
‘Coloureds’ living in District Six in Cape Town.
• Apartheid laws (Natives Laws Amendment Act 54 of 1952, Natives Act 67 of

1952 – also known as the Pass Laws – and the Influx Control Act 68 of 1986)
further restricted the movement of Africans in so-called ‘white only’ areas and,
together with the already limited rights of black Africans to own land, entrenched
the white minority’s control of over 80 per cent of South African land.
• The Prohibition of Mixed Marriages Act No 55 of 1949 and the Immorality
Amendment Act 21 of 1950 prohibited most social contacts between the races.
In addition, to enforce the segregation of public facilities (public buildings,
amenities and public transport), the Reservation of Separate Amenities Act 49
of 1953 was passed with signs ‘Europeans Only’ and ‘Non-Europeans Only’
displayed in public spaces, reserving also parks, beaches, churches, schools,
universities and hospitals for the use of whites only. This act stated that facili-
ties provided for different races need not be equal.
• Various laws prescribed the separation of educational standards for different
race groups (Bantu Education Act No 47 of 1953), created race-specific job
categories, restricted the powers of non-white unions and curbed non-white
participation in government (Bantu Building Workers Act No 27 of 1951;
Separate Representation of Voters Act No 46 of 1951; Bantu Authorities Act
No 68 of 1951). Hendrik Verwoerd, the architect of apartheid, said in 1953
in parliament (whites only): ‘When I have control over native education, I
will reform it so that natives will be taught from childhood that equality with
Europeans is not for them.’ Similar to the earlier British sentiments of Rhodes,
Verwoerd continues in 1955: ‘There is no place for the Bantu in the European
community above the level of certain forms of labour’ (Peacock, 1989).
• Further laws were aimed at repressing resistance to the apartheid regime, for
instance, communism was outlawed and defined so broadly that it encom-
passed any call for major change in South Africa. Communists (real or alleged)
could have been banned from participating in political organisations, or from
residing in particular residential areas (Suppression of Communism Act No 44
of 1950).
The crime of apartheid was accompanied by tremendous suppression of opposi-

tion by the state apparatus, but resistance continued to grow nevertheless within
South Africa. From the 1950s the youth wing of the African National Congress
(ANC) initiated a series of strikes, boycotts and civil disobedience actions that lead
to violent clashes with the police force. The Sharpeville massacre took place on 21
March 1960, when a group – disenchanted ANC members who formed the Pan
Africanist Congress (PAC) – was protesting against the Natives Act of 1952 (also
known as the Pass Laws) that required African people to carry identification cards
on their person at all times in order to restrict their movement in so-called ‘white
only’ urban areas. Sixty-nine people were killed and many were injured when the
South African police force opened fire on the approximately 300 demonstrators.
Subsequently, the regime declared a State of Emergency and more than 18,000
people were arrested and detained, including leaders of the ANC and PAC. Both
216 Robert Peacock
organisations were banned and the resistance movement went underground. The
ANC formed a military wing, Umkhonto we Sizwe (MK) which would perform
acts of sabotage on tactical state structures. The Azanian People’s Liberation Army
(APLA) became the military wing of the PAC (Peacock, 2011).
It took a number of decades before the international community was ready to
openly condemn the apartheid regime. On 30 November 1973, the United Nations
General Assembly opened for signature and ratification the International Conven-
tion on the Suppression and Punishment of the Crime of Apartheid (ICSPCA).
The crime of apartheid was defined as ‘inhuman acts committed for the purpose
of establishing and maintaining domination by one racial group of persons over
any other racial group of persons and systematically oppressing them’ (see also the
replication thereof under the 2002 Rome Statute of the International Criminal
Court).
Along with the unbanning of the African National Congress, Nelson Man-
dela was released from prison at the beginning of 1990. An Interim Constitution
(Act No 200 of 1993) was negotiated to prepare the way for South Africa’s first
democratic elections. To make elections possible within the context of a brutal
past the final clause in the Interim Constitution provided amnesty for all offences
committed with political motives, but with the proviso that the applicant should
fully disclose all relevant facts in respect to the act or omission for which amnesty
was sought (Sections 20(1)(b) and 20(1)(c)). The Promotion of National Unity and
Reconciliation Act (Act No 34 of 1995) provided the Truth and Reconciliation
Commission with a mandate to establish as completely as possible the causes, nature
and extent of gross human rights violations committed under apartheid from March
1960 to December 1993, later amended to May 1994. This was to be achieved
through investigations and the holding of public hearings. Also, the Commission
was to restore the human and civil dignity of victims, formulate recommendations
for reparations and compile a written report including measures to prevent future
violations of human rights.
State violence
The South African Truth and Reconciliation Commission (TRC) received 21,296
statements regarding gross human rights violations. Within a very specific time
frame – from March 1960 to May 1994 – the focus of the TRC was mainly on
the cruel and brutal activities of the apartheid security police force. However, the
TRC could be criticised for adopting too narrow a definition of gross violations of
human rights abuses of the apartheid regime (Peacock, 2011). In addition to brutal
incidents of mental or physical abuse perpetrated only during a very specific time-
frame, structural human rights abuses mentioned earlier (racialised poverty and
exclusion from the educational system) should have been included, being at the
centre of gross human rights violations along with the greatest historical act of law-
lessness, the introduction of the Act of Union by the British Parliament. Some sub-
sets or ‘victim groupings’ were also poorly represented at the TRC. For instance, a
lack of participation was noted of combatants who might have been reluctant to be
perceived as victims as opposed to liberation heroes who had fought for a moral and
just cause. Cases of detention without trial and violations experienced other than
torture during the course of incarceration were also underrepresented. As a final
example of a lack of representation, the Commission noted that it did not receive a
single Human Rights Violation statement from any of the Rivonia trialists (Truth
and Reconciliation Commission, 1998).1
Finally, very few statements were received from victims outside the borders of
South Africa, while it has been argued that the majority of the gross violations of
human rights were indeed committed outside the borders of the country. Cross-
border raids of the South African Defense Force (SANDF) into neighbouring states
such as Angola were commonplace,2 and evidence before the Truth and Recon-
ciliation Commission (1998) suggested that conflicts in southern African states,
particularly in Mozambique, Namibia and Angola, were inextricably linked to the
struggle for control of the South African state. Evidence before the Commission
also showed that members of the ANC and PAC in exile were involved in the
commission of gross violations of human rights, particularly within their own ranks
(Truth and Reconciliation Commission, 1998).
Research (Peacock, 2011) shows that apartheid had in particular a devastating
effect on young people. The chapter on children and youth in the Truth and Rec-
onciliation Commission’s report (1998) pays special tribute to the extraordinary
heroism of the youth who risked their education and lives for a just South Africa.
However, many did not live beyond their teens and became victims of the very
system against which they struggled. On 16 June 1976 (now commemorated as
Youth Day in South Africa) students protested in the streets of Soweto against the
inferior Bantu education system and forced tuition in Afrikaans. The police force
then opened fire on what was supposed to be a peaceful demonstration. According
to official reports, 23 students were killed, but some news agencies estimated the
casualties rather to be closer to 600 with an additional count of 4,000 students who
sustained injuries. When a State of Emergency was declared in June 1986 (giving
the police and military forces wide-ranging powers to suppress the political unrest),
173,000 children and juveniles were detained under security legislation in prison
or police cells for extended periods, without trial or legal representation (Foster,
Davis and Sandler, 1987; Langa, 1987). These figures do not include the detention
of children in the then so-called ‘independent homelands’. They also do not refer
to children dealt with by unofficial vigilante forces allied with and often directed
by the apartheid regime. According to the Detainees’ Parents’ Support Committee
(1987) 30–40 per cent of all people killed, wounded, arrested or detained in police
or prison cells were children and juveniles.
A submission from medical practitioners to the Truth and Reconciliation Com-
mission (1998) contains a 94 per cent incidence of either physical or mental abuse
that was experienced among former detainees. Half of the sample in the study were
exhibiting physical symptoms of abuse during the time of examination and 48 per
cent were found to be psychologically ‘dysfunctional’. The Commission established
218 Robert Peacock
that deaths in detention were commonplace, usually as a direct or indirect result

(suicide) of torture. Torture techniques that were identified ranged from assault to
various forms of suffocation (including the ‘wet bag’ or ‘tubing’ method), enforced
posture, electric shocks, sexual torture, psychological torture and solitary confine-
ment. The Commission found that the South African government condoned the
use of torture as official practice. Despite the common occurrence of torture and
maltreatment of those held in custody under security legislation (detention without
trial), only 20 amnesty applications were received for torture (Truth and Recon-
ciliation Commission, 1998).
The following records to the TRC can also be found from Krog (2002) and
demonstrate the nature of some of the submissions received:
1. This white man with the red scarf, he shot outside into the outside room
where Sonnyboy was hiding . . . I was standing in the kitchen . . . I saw him
dragging my child. Sonnyboy was already dead . . . I saw him digging a hole,
scraping Sonnyboy’s brains into the hole and closing it with his boot. The sun
was bright . . . but it went dark when I saw him lying there. Its everlasting
pain. It will never stop in my heart. It will always come back. It eats me apart.
Sonnyboy, rest well, my child. I’ve translated you from the dead.
2. When I opened the door . . . there was my closest friend and comrade . . .
She was standing in the doorstep and she screamed: ‘My child, my little Nom-
mzamo is still in the house!’ . . . I stared at her . . . my most beautiful friend . . .
her hair flaming and her chest like a furnace . . . she died a day later. I pulled
out her baby from the burning house . . . I put her on the grass . . . only to find
that her skin stayed behind on my hands. She is with me here today.
3. ‘Let the spy die, let the spy die!’ They threw stones through the window.
When they left, he said to me: ‘Don’t cry Nontuthuzelo. A person only dies
once, not many times. I know now where these things are leading to. Come
let’s make soup.’ We went to the kitchen and put beans in the pot. Then
someone we knew knocked at the door. ‘The comrades are burning your
shop, Uncle Mick!’ ‘I’ll be back for lunch,’ he said to me . . . He walked up to
the door of his shop, he didn’t look back . . . someone in the crowd shot him
in the back . . .
4. And the man there sitting next to the ambulance driver – he stood there with
my son’s intestines in his hands and he was actually holding it and carried it
into the ambulance.
5. This was the last thing I saw. Bernard standing next to his car. He spoke Xhosa
like a Xhosa. He pointed his firearm at me. I felt something hitting my cheek.
I felt my eyes itching. I was scratching my eyes and yelling for help. Since then
I’ve been blind . . . and unemployed . . . and alone and homeless. But today
. . . today it feels as if I can nearly see . . .
6. I heard shots . . . I ran . . . slipped and fell . . . I crawled out at the front door
. . . On the steps my son sat . . . with his father’s face in his hands . . . he was
covered in blood . . . He cried over and over: ‘Daddy, talk to me . . .’ Today
he is 21 years old. I am still woken at night by his cries: ‘Wipe the blood . . .
wipe the blood from my father’s face.’
7. Thomzama Maliti, testifying on the death of Nombulelo Delato:
Advocate Ntsebeza: When did the police come in?
Ms Maliti: The police arrived when she was burned already. She was
burned while she was pregnant.
Adv N: What do you mean by that?
Ms Maliti: When the police came in, they could – they were trying
to find out where she was, but they could hear her crying.
They saw her in the main road, she was already alight.
Adv N: Did she run after she was burnt?
Ms Maliti: No, she couldn’t run, she was just walking slowly, her
clothes were burning. She went into the direction where
the police were.
Adv N: Was she walking around while she was naked?
Ms Maliti: Yes.
Adv N: Were the people afraid to help her?
Ms Maliti: No one was allowed by the comrades to help her, so she
went alone to the van.
8. I can only deal with it in the form of questions. Do you know, you the Truth
Commissioners, how a temperature feels of between six and eight thousand
degrees? Do you know how it feels to experience a blow so intense that it
forces the fillings from your teeth? Do you know how it feels to look for survi-
vors and only find the dead maimed . . . Do you know how it feels to look for
your three-year-old child and never, Mr Chairman, never to find him again
and to keep wondering for the rest of your life where he is? . . .
We were immediately in flames. When I came to myself I saw my baby boy
of eighteen months was still alive . . . he was lying quite still, but looking at me.
Mr De Neyschen was lying on the steering wheel . . . his hair burning, blood
spouting from his forehead.
9. Kruger took off my jersey and my shirt and pulled me up to the desk. One of
them took off my bra. They forced me to bend over the open drawer so that
one of my breasts would hang in the drawer. Then they slammed the drawer
shut so that my breast was squashed. They did this three times to each of my
breasts . . . They also pulled handfulls of hair out of my head.
10. Michael Lapsley: Hands transmit love . . . tenderness . . . I endured an endless
and intensely overwhelming sorrow of the loss of my hands . . . when they
brought me the prosthetic hands, I started crying . . . because they were so
ugly . . . Now I have these . . . and it is actually amazing what they can do.
[Father Lapsley raised stainless-steel prosthetic hands to take the oath before
his submission to the TRC. But according to Krog (2002) the stainless steel
‘pinchers’ prevented him from wiping his tears like other victims.]
11. I saw the severed hand of a black activist in a bottle at a Port Elizabeth police
220 Robert Peacock
station. The police told me it was a baboon’s hand. They said to me: ‘Look
here. This is the bottled hand of a Communist’. But I know Sicelo Mhlawuli,
one of the Cradock Four, was buried with his hand missing.
From state violence to reconciliation

When state violence is perpetrated against a segment of society within its own
boundaries, such premeditated and systematic extermination of a social class or eth-
nic group follows the methods of genocide rather than that of war between two
nations. According to Maiello (2001), in-depth psychoanalytic studies have been
undertaken not only on the families of the desaparecidos in Argentina and Chile, but
also on the survivors of the holocaust, and on the survivors’ offspring in the second
and third generations. The concept of the paranoid-schizoid is suggested in under-
standing not only an individual’s specific constellation of anxieties, defences and
object relations (splitting and denial of destructive fantasies and projection into a ‘not
me’ object to protect the self) but also those processes of dehumanisation (internali-
sation of violence) that characterise state violence, including the apartheid ideology.
Danieli (2009) is of the opinion that massive (collective) trauma causes such
diverse and complex destruction that only a multidimensional, multidisciplinary
integrative framework is adequate to describe it, as an individual’s identity involves
a complex interplay of multiple spheres or systems. Among these would be the
biological and intrapsychic, the interpersonal (familial, social, communal), the eth-
nic, cultural and spiritual, the educational, material/economic, political, national
and international. Despite such complex destruction, Danieli (in Letchert et al.,
2011) states, victims respond to trauma in rather predictive ways and, similar to the
singular paranoid-schizoid perspective, she narrows it down to Acute Stress Disorder
(ASD) in the short run and Post Traumatic Stress Disorder (PTSD) in the longer term
(DSM-IV) (American Psychiatric Association, 2000). However, such reduction of
identity remains a negation of variability in human subjectivity, regardless the initial
proffering of different contexts.
Kagee (2004) critiques the hegemony of the psychiatric model of traumatisation
in conceptualising the needs of this population, and suggests an alternate perspec-
tive that is broader and more inclusive than a psychiatric paradigm. When inter-
preting distress, social, political and economic factors also impact on individuals’
psychological state and sense of well-being. This would be the case particularly
within the context of a transitional society such as South Arica that is characterised
by structural violence and poverty. It is therefore possible that respondents may
endorse PTSD symptoms offered by an evaluator in a clinical or research con-
text, not because they necessarily exhibit them or find them salient, but because
endorsement may indicate that they are deserving of expected reparations for their
suffering. This premise does not seek to deny the suffering of survivors of human
rights abuses in South Africa but to question the extent to which their reactions
and need for reparations warrant framing within a paradigm of psychopathology;
particularly as a western medicalised view of humanity and trauma in Africa may
serve chiefly as an internal reproduction of oppression, distracting with its labelling

from broader societal imbalances and injustices. Also, with the manufacturing of
disease and importation of alien mental health constructs into Africa, and subse-
quent pathologising of normal reactions to victimisation (distress, loss and grief), an
amplification of victimisation is produced, prolonging the suffering of the survivor
and henceforth also impacting negatively on his/her reference groups, community
and society in general (Peacock, 2013).
The invocation of healing by the South African TRC was not only due to the
rhetoric of disease and popularisation of psychotherapy, but Christian theology
served furthermore to elevate testimony to a new height. In ministering to the
‘wounded’ nation, Archbishop Tutu maintained, ‘Religion is central to this proc-
ess of healing, especially Christianity’, and ‘Finding out the truth is not in order
for people to be prosecuted. It is so that we can use the truth as part of the process
of healing our nation’ (Lund, 2003), notwithstanding that the medical claims and
religious confessions of the TRC were untested, presuming that telling and hear-
ing the truth is healing (Peacock, 2011). Such representation of religion questions
also whether the TRC was an arm of the state or the church and would have been
unacceptable in other secular countries where the separation of church and state is
taken seriously. Moreover, religious rhetoric served to distract from grave human
rights concerns by urging the survivors of mass atrocities to forgive. Ironically,
Christian theology was also used by the colonial imperialists and missionaries to
impose the standards and values of the invading culture in their so-called efforts of
‘liberating’ the ‘Dark Continent’ (Hook, 2004).
The church (not only Afrikaans churches but Anglican, Methodist, Presbyte-
rian, Baptist, Apostolic Faith Mission and Roman Catholic churches) 1) partici-
pated furthermore in state structures of the regime by appointing chaplains in the
apartheid military; 2) suppressed and censured dissidents (not only failing to pro-
vide support to anti-apartheid activists but branding them as ‘heretics’ i.e. Beyers
Naude); 3) internalised racism (‘whites only’ churches but discrimination was also
prevalent in the non-Christian faith communities with, for example, ethno-class
and theological distinctions between Indian and Malay Muslims) 4) propagated
‘state theology’ where the powerful were blessed and the poor to be reduced to
passivity, obedience and apathy (Peacock, 2011). According to the Truth and Rec-
onciliation Commission (1998), the apartheid state viewed itself as a guardian of
‘Christian civilisation.’
With the burden of forgiving on the black majority of victims who had suf-
fered under the apartheid regime, it could be concluded in the absence of certain
reciprocity in the balancing acts of reparations and amnesty granted by the Com-
mission, that they became the ‘sacrificial’ symbols in the TRC process. With the
state taking responsibility for reparations, all that was required from the amnesty
applicants was to convince the Amnesty Committee that their acts were indeed
associated with a political motive and that full disclosure was made, but it was not
necessary to express remorse or ask for forgiveness in order to receive amnesty
(Truth and Reconciliation Commission, 1998).
222 Robert Peacock
Initially, the Committee on Reparations and Rehabilitation (CRR) of the

TRC recommended that a comprehensive reparations programme should be
implemented by the government. This would have included direct financial com-
pensation to victims as well as symbolic, community-based and institutional forms
of reparations. However, while this could have been one of the most ambitious
reparations programmes in sub-Saharan Africa, the state decided in the end on a
much more diluted version, a one-off direct financial payment to victims and a
community-determined programme (Colvin, 2007). Adequate reparations would
have done much publicly to affirm the moral worth of victims, together with
providing a much-needed measure of financial relief, but after many years the
South African Coalition for Transitional Justice (2011) still needs to hold the South
African government accountable to its obligations. The Universal Declaration of
Human Rights as well as the International Covenant on Civil and Political Rights
provides that every person who has been a victim of gross human rights violations is
entitled to an effective remedy. But South Africa, with its freedom struggle heroes,
lags behind countries such as Brazil, Peru, Guatemala and Sierra Leone, which
have established on-going victim registration procedures. Other countries such
as Argentina and Chile have repeatedly extended or reopened victim registration
procedures. Furthermore, the South African Commission for Transitional Justice
(2011) remains concerned that the many unnecessarily complicated administra-
tive procedures contained in the regulations would render the proposed assistance
largely inaccessible.
The TRC, with its restrictive focus on gross human rights violations from March
1960 to May 1994 under the apartheid regime, needed to refer also to the transfor-
mation of unjust inequalities so as to address successfully the dehumanising effects
of poverty induced by the structural and institutional violence of colonisation and
the apartheid state; and, as social justice, to commit to the full development of a
person, his/her community, society and a nation (Peacock, 2011). However, for
the sake of national unity, the good of the majority assumed precedence over the
human rights of the individual and the TRC, with its salient secondary victimisa-
tion, facilitated a forgetfulness of the greater historical and structural violence of
colonisation and apartheid. According to Lund (2003), the rhetoric of national
healing binds South Africa all the more to its political past instead of setting it free.
As in the colonial era, the language of disease was used in the TRC process to
legitimise invasive actions that promoted state consolidation at the expense of the
marginalised individual.
Conclusion
In concert with Christian and biomedical conceptions of healing, the imperatives
of national unity in South Africa have been pursued at the expense of individual
and social justice for the majority of South Africans. In dealing with the atrocities of
colonisation, apartheid and state violence, an alternative framework is required to
interpret distress. Rather than attempting to ‘psychologise away’ social inequality,
racism and human rights abuses, a broader framework of justice and reconciliation
is required to capture the complexities of distress on the African continent, includ-
ing its historical, cultural, social-political and economic dimensions. A restricted
perspective will obscure the structural and institutional violent legacy of colonisa-
tion and state crime and will inappropriately foster Afropessimism, thereby also
negating the progress made with political reforms for a new and just South Africa.
Notes
1. The Rivonia Trial took place during the years 1963–64, when sixteen leaders of the
ANC were tried for 221 acts of sabotage to ‘ferment violent revolution’ and were sen-
tenced decades in prison on Robben Island. Please see http://www.guardian.co.uk/
world/2001/feb/11/nelsonmandela.southafrica2 for the historical background to Nel-
son Mandela’s last public speech for 27 years.
2. For instance, more than 600 people were killed in one day at Kassinga by the SANDF.
According to the then South African government, Kassinga in Angola was a guerrilla
base and thus a legitimate military target, but other accounts refer to the victims of the
massacre as unnamed refugees (Truth and Reconciliation Commission, 1998).
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13
CONTROLLING STATE CRIME
AND THE POSSIBILITY OF
CREATING MORE VICTIMS
Jeffrey Ian Ross and Peter Grabosky
Introduction
Doing good and helping those who appear to need our assistance are widely
accepted universal values held by many people, cultures, nations, states, and inter-
national bodies. Almost important is the sage warning that the road to hell is paved
with good intentions, if indeed such actions are paved with good intentions.
This idea, expressed as unintended, unanticipated, and unforeseen consequences
(hereafter unintended consequences) can be traced back to English economist Adam
Smith’s writings on consequentialism (1759/2010), and has been more recently
developed by American Sociologist Robert K. Merton’s in his oft-cited seminal
essay, “Unintended consequences of purposeful social action” (1936).
Indeed, providing assistance happens in many domains, from the doctor who
prescribes a medication to a patient, to a priest or minister who provides spiritual
guidance to a member of his/her congregation, to the politician who helps a con-
stituent deal with the unresponsive government bureaucracy, to the country that
sends soldiers to a war zone to maintain a fragile peace.
This chapter, however, is narrower in focus and specifically examines the unin-
tended effects that can occur when countries attempt to control, minimize and/or
eliminate state crime victimization in other states.1 Thus, the discussion is limited
to interventions that are done in the international arena and ignores those that hap-
pen domestically.2 Additionally, this chapter is focused not on the issue of controls
per se, but on the intended and unintended consequences of additional victimiza-
tion of already vulnerable populations. In addition to clarifying numerous terms
and reviewing the literature on this topic, we offer several examples where state
intervention and controls have resulted in additional victimization. Unfortunately,
many are not recognized as such. We conclude by recommending a more thor-
ough analysis of this quandary than currently exists in the policy world.
226 Jeffrey Ian Ross and Peter Grabosky
Literature review
Although Adam Smith was the first to mention the concept, Merton suggested that
there are three primary unintended consequences: a positive unexpected benefit,
a negative unexpected benefit that occurs after a positive one is achieved, and
perverse action, which is not what was hoped for in the beginning. He posited
five basic causes of unintended consequences: ignorance, error, immediate interest,
basic values, and self-defeating prophecy.
Since then, a handful of social scientists, from James Samuel Coleman to
Anthony Giddens, have traced the implications of unintended consequences. In
recent years, some social scientists have addressed the issue of counterproductive
interventions in various domains of public policy (e.g., Marx 1981; Sieber 1981;
Boudon 1982; Robertson 1989; Sunstein 1990; Grabosky 1995; Dorner 1997;
Tenner 1997; Rothe and Ross 2010). Likewise, some criminologists have looked
at the problem of unintended consequences in the context of crime prevention
(e.g., Grabosky 1996; McCord 2003), while others have examined unintended
consequences with respect to state crime. Indeed, numerous articles have examined
this process in selected crimes committed by governments.
One of the most direct applications of this concept to state crime was the
article by Ross and Rothe (2008), who tackled the issue by “identifying the gov-
ernment’s most typical reactions to attempts of control,” “understand[ing] this
process and place[ing] this phenomenon into a larger context” (p. 196). They
limit their discussion to “US reactions and attempts to control the controllers, as
well as the subsequent potential victimization that can occur.” Ross and Rothe
identify seven ways that states purposefully or accidentally continue to victim-
ize their citizens after attempts to control have been introduced (i.e., censure,
scapegoating or obfuscation, retaliation, defiance/resistance, plausible deniability
or improving the agency’s ability to hide and/or explain away crimes, relying on
self-righteousness, redirection/misdirection, and fear mongering). This model
was also used to explain the U.S. reaction in the case of Bradley Manning, a
whistleblower, and Julian Assange of WikiLeaks.
On closer examination, one may note that these actions can be physical, requir-
ing the expenditure of a great deal of resources, while others remain simple rhe-
torical devices involving minimal expense. Assuming that the Ross and Rothe
explanation holds merit, missing from this explanation is an in-depth discussion
of how some of these efforts can create more victims, and the voice of the victims
themselves.
Few would quarrel with the laudable objective of controlling state crime (Ross
2000; 2000; 1995). Unfortunately, not all efforts to control state crime succeed,
and some are harmful to the people who are to be “helped.” The current chap-
ter reviews the literature on this subject, some of which is grounded in rigorous
empirical analysis. It then outlines some prominent examples of efforts to control
state crime that have proven to be counterproductive, thus resulting in additional
cases of victimization or, indeed, of revictimization.
Controlling state crime 227
How certain types of controls used in the international

community can backfire, causing revictimization
We discuss four typical processes that may backfire when employed by states in
response to state crime in other countries (Martin 2006), resulting in recognized
and unrecognized victimization. These include moral suasion/negotiation, eco-
nomic/trade sanctions, humanitarian intervention, and armed intervention.
Moral suasion/negotiation
Simply appealing to the leaders of a criminal state may succeed in some situations,
but is often futile. Such requests may be seen by the recipient as no more than empty
words, and a sign of weakness. Appeals that are perceived as hollow may embolden
a criminal regime no less than strategic bombing appears to have done during World
War II (Pape 1996). No amount of reasoning or appeals to the responsibilities of
world citizenship appears to have discouraged the government of George W. Bush
from the use of torture, nor the Democratic People’s Republic of Korea from pursu-
ing its nuclear ambitions. With respect to the latter, one has to assume that, in order
to prop up its military capabilities, North Korea has restricted its spending on other
parts of the economy that would alleviate food shortages. During the late 1990s,
different international and regional bodies (the United Nations and the African
Union), and countries (Libya) attempted to resolve the hostilities in Darfur (Nzelibe
2008, pp. 36–46). Although the government was willing to intervene, the “Darfur
rebel leaders” were reluctant to concede, as they “were gambling on a greater role
by western states because . . . they had observed closely how overt pressure from
the United States had led the Sudanese government to make generous concessions
as part of the 2004 agreement to end the four decade old civil war between the
Sudanese government and the Sudan People’s Liberation Army (SPLA) of southern
Sudan” (p. 38). Thereafter the Sudanese government supported the Janjaweed to
attack Darfur settlements. This led to “thousands of innocent civilians dead and mil-
lions displaced, it created an international outcry that had the unintended effect of
initially elevating the stature of some of the rebel leaders” (pp. 44–5).
Economic/trade sanctions
One of the most popular state actions to express displeasure with other countries
is the use of some form of economic/trade sanction on target governments to
encourage their desistance from illegality (Farrall 2007). The United States, for
example, has refused to trade with Cuba for more than half a century (Garfield and
Santana, 1997). Other instances in recent years include sanctions imposed on South
Africa during the latter years of the apartheid era, and on Iraq during the last decade
of the Saddam Hussein regime (Garfield 2001). They have also been evident in Iran
following the 1979 revolution which brought Ayatollah Khomeini to power, and
increasingly so following the inception of Iran’s nuclear enrichment program.
Economic sanctions are by no means a panacea. As is the case with other types
of intervention, they may provoke a spiteful intensification of abuses by the target
government. Perhaps the most rigorous empirical study of the impact of sanctions
on repression by the target state is the work of Wood (2008). His probit regression
analysis of 157 countries for the years 1976–2001 found that sanctions imposed
by the United States and/or the United Nations contributed significantly to state-
sponsored repression. Multilateral sanctions under UN auspices produced more
repression than unilateral state sanctions. Weapons embargoes, however, appeared
not to be systematically related to changes in repression. Wood interpreted his find-
ings as suggesting that repression resulted from “incumbent efforts to prevent the
defection of core supporters and to stifle dissent in the face of declining economic
conditions or growing opposition support” (Wood 2008, 509).
Economic sanctions may bring about other adaptive responses, by inspiring a
greater degree of resourcefulness on the part of the target government. Andreas
(2005) speculates that sanctions can contribute to further criminalization of the
state and civil society in both the target state and its neighbors, and can foster sym-
biotic relations between officials and criminal organizations (Wannenburg 2008;
Glenny 2001, 663–706). Toward the end of the apartheid era, South African state
security reportedly engaged criminal groups to assist with “sanctions busting” and
with resisting ANC insurgents (Standing 2003). The wider criminogenic effects
of economic sanctions, “smart” or otherwise, cannot be ignored (Cortright and
Lopez 2000; 2002a; 2002b). Sanctions busting may help to legitimate the practice
of smuggling, leading to a refinement of practices and the development of skills that
may be useful long after the sanctions are lifted.
Perhaps the most troubling risk arising from the imposition of economic sanc-
tions, is that of collateral damage (Weiss et al. 1997). Shortages of food and medi-
cine, which often result from sanctions, tend to bear most directly on children, the
elderly, and the infirm (Garfield 2001). It was suggested that adverse health effects
of the 1991–98 blockade of Iraq resulted in 500,000 Iraqi civilian deaths from dis-
ease and malnutrition. Attempts to mitigate the unintended consequences of eco-
nomic sanctions may also be vulnerable to subversion. During the years preceding
the second Iraq War (1995–2003), the UN Oil for Food program was established
to allow Iraq to sell oil in return for medicine, food, and other humanitarian relief
supplies. The program was plagued with irregularities, including kickbacks to Iraqi
government officials (Independent Inquiry Committee into the United Nations
Oil-for-Food Programme 2006). Farrall (2007, 52) has noted that sanctions can
serve to provoke or prolong a war.
It is extremely difficult to use economic sanctions with precision against those
government officials who are directly responsible for state criminal activity. The
UN Security Council now tends to apply “smart” or “targeted” sanctions against
individual offenders rather than use comprehensive sanction regimes against a
country or society as a whole. Today, a typical sanction regime will target the bank
accounts and travel of individuals considered to represent a threat to international
peace and security. In 2012, for instance, the African Union froze the assets of
and instituted travel restrictions on leaders of the military junta in Mali (Vines
2013, 92).
Humanitarian intervention
When political conflicts occur, politicians and human rights activists frequently
want to come to the assistance of the persons and groups who are threatened or
injured. “The problem is that unlike the Holocaust, most contemporary atrocities
take place in the context of full blown civil wars or rebellions in which rebel leaders
are usually pursuing independent political objectives that might be more valuable
to them than the lives of their followers” (Nzelibe 2008, 40). Intervention in the
affairs of other states is a long-held practice of countries wishing to both dominate
and help individuals in the world system. Although some suggest that we can prob-
ably trace the first humanitarian intervention back to 1860, when France, under
Napoleon III, sent troops to Syria to protect Christian Maronites who were being
systematically killed by Druze militias under the watchful eyes and support of the
occupying Ottomans, others suggest that it began with the combined efforts of
France, Russia, and Great Britain’s involvement in the Greek War of Independ-
ence (1924). Needless to say, since the late 1990s, selected governments have advo-
cated and some have pursued the policy and practice of humanitarian intervention.
Despite the noble intentions, many scholars have criticized humanitarian interven-
tion as thinly veiled attempts at colonialism (e.g., Orford 2003) and imperialism
(e.g., Ali 2000; Chomsky 2001; Woodward 2001).
Humanitarian intervention may be rendered ineffective by bureaucratic inertia.
Failure to intervene forcefully at the onset of the Rwanda genocide undoubtedly
increased the fatality rate (Cohen 2007). This mass slaughter of Tutsis by Hutus
in 1994 eventually resulted in the deaths of between 500,000 and 800,000 people
(Eck and Hultman 2007). UN headquarters refused to authorize the use of force,
except in defense of UN personnel.
The dramatic proliferation of non-governmental aid agencies and the increas-
ing reliance by nation-states and intergovernmental organizations on NGOs to
deliver aid has also created significant difficulties. Cooley and Ron (2002) argue
that the marketization of aid delivery and the growing use of competitive bidding
by donor states have resulted in considerable harm. In the Democratic Republic of
the Congo, the “hypercompetitive relief market” allowed the diversion of funds
to suspected war criminals. In Bosnia, competition enabled some military com-
manders to resist oversight of prisons. Contractors have also dispensed largesse to
local bureaucrats to maintain good relations. This does little to constrain a culture
of corruption.3
De Waal (1998) argues that humanitarian relief can disempower victims and
strengthen authoritarian regimes. Maren (1997) reports that relief aid in 1979
helped entrench the Barre regime in Somalia.
Humanitarian assistance in the form of food aid is vulnerable to diversion. De
Waal (1998, 169) and Maren (1997) both report that a significant proportion of
food aid to Somalia was stolen or diverted. De Waal and Omaar (1994) notes that
“Food aid has fed wars wherever it has gone.” Moreover, it can be used as a tool to
influence population movements, not always in the interests of those on the move.
In some cases, the diversion may serve the interests of the criminal state. The Asso-
ciated Press (1997) reported that a North Korean submarine which ran aground
off South Korea contained a label from a can of beef that appeared to have been
donated as food aid. The label read, in part, “Food for relief, in the name of Christ”
and “Mennonite Churches of Va.”
On occasion, those who intervene for humanitarian purposes may seek personal
gratification, at the expense of those whom they purport to assist. Simm (2013)
notes examples of sexual exploitation and abuse by peacekeeping forces, as well as
by private military contractors and humanitarian NGO workers. Sometimes the
harms inflicted by humanitarian intervention may be entirely unintentional. In
2010, a UN peacekeeper inadvertently introduced cholera to Haiti, resulting in at
least 5,000 deaths (Enserink 2010).
Armed intervention
The most dramatic response to state crime is armed intervention. Although this
can be undertaken by domestic insurgents and would-be revolutionaries,4 the most
common manifestation is intervention by third-party states, either unilaterally or in
coalition. The use of armed force against a state engaged in criminal conduct may
appeal to one’s sense of altruism, or desire for vengeance, or some combination of
the two. Regardless, it is an option fraught with risk. Assuming the targeted state
has the capacity, it may respond to armed intervention with revenge (Blum 2013).
Maren (1997) reports that US armed intervention in Somalia helped raise the pro-
file, and ultimately the influence, of General Aydeed.
Governments which practice torture and other sorts of human rights violations,
however heinous their activities, might for various reasons (e.g., loyalty, etc.) still
enjoy a modicum of popular domestic support. Regime supporters, in the face of
an attacking force, may defend themselves vigorously, and with great violence.
The tenacious resistance during 2012–13 of those loyal to the Assad regime in Syria
is illustrative. In this scenario, the government may increase its abuse towards the
local population, much as it was shown to have done by Wood (2008) in response
to economic sanctions.
Criminal regimes may preside over societies that are divided along racial, ethnic,
religious, or socioeconomic lines. When external intervention weakens a crimi-
nal state, it will heighten the potential for the unleashing of ferocious centrifu-
gal forces. The resulting violence can be directed against domestic adversaries, as
well as against forces of the intervening state or states. Woodward (2001, 241)
observes that the empowerment of Albanian radicals after the NATO operation
against Yugoslavia over Kosovo resulted not only in the abuse of ethnic minorities
in Kosovo itself, but also in Kosovo Albanians turning their aggressive attentions
towards neighboring Macedonia. Events during the 2003–8 Iraq War were grimly
illustrative when Sunnis, Shiites, and Kurds jockeying for political power attacked
one another. Sectarian violence persists in Iraq at the time of writing. The resulting
civilian casualties and displacement of persons show how response to one humani-
tarian catastrophe may beget others.
As with humanitarian assistance, the problem may lie, ironically, with the would-
be rescuer. Armed intervention cannot always be counted upon to be implemented
in a civilized, professional manner. Inappropriate training and leadership of those
who intervene may result in considerable harm to the “rescued.” Armed forces and
others engaged in peacekeeping missions are also at risk of inflicting serious harm
on the societies they seek to protect (Odello 2010).5 Many missions have been
blighted by the indiscriminate killing of civilians. During their mission to Somalia
in the early 1990s, Canadian soldiers bound and beat to death a 16-year-old boy,
and fatally shot another man who fled after trying to enter a Canadian base. US
occupation forces in Iraq have also been implicated in a number of intentional
homicides of non-combatants.
One the most debated instances of humanitarian intervention predicated on a
“humanitarian catastrophe” and having negative consequences on the local popula-
tion was the 1999 (March 23–June 12) NATO aerial bombing of Yugoslavia dur-
ing the Kosovo intervention (Woodward 2001; Nzelibe 2008, pp. 46–50). During
this period, especially during the first two months, the resolve of the Yugoslavian
army (the Serbs) was further strengthened to commit atrocities against the Kosovo
population (i.e., Albanians, Roma, etc.). The intervention also led to increased
displacement of the people of Kosovo as refugees, and a handful of incidents where
Kosovars who had been forced to flee were mistakenly killed by NATO forces.
The nature of armed intervention is such that collateral damage is all but inevi-
table. Cronin (2013) notes that during the 1991 Gulf War, air strikes intended to
degrade Iraqi command-and-control capabilities succeeded in destroying electric
power generation facilities. The resulting disruption to water purification and sew-
age treatment facilities contributed to an outbreak of cholera and typhoid, doubling
the infant mortality rate and leading to an estimated 100,000 civilian deaths. Even
where great pains are taken to limit civilian casualties, such as the air attacks on
Libya in 2012 and the campaign of drone strikes by the US in Pakistan, accidents
do happen (Shane 2011). Ground operations can also have lethal consequences
for civilians. On some occasions, this can entail deliberate acts by members of the
intervening forces. Kahl (2007) relates a number of cases involving the premedi-
tated murder and rape of Iraqi civilians by US forces. Rape, in particular, has been
an unfortunate consequence of armed intervention. The liberation of France at the
end of World War II was not without its dark side, likewise the invasion of Ger-
many by Allied forces (Lilly 2007; Roberts 2013).
The aftermath of armed intervention may create circumstances conducive to
criminality among locals. Circumstances arising from the weakening of the state can
create a fertile field for criminal organizations (Mincheva and Gurr 2013). The over-
throw of a criminal state may be followed by a degree of anomie among members of
the public, and a shortfall in the capacity for social control by the intervening state.
This can lead to “survival crime” by individuals, as well as to the formation of preda-
tory criminal groups who depend on crime for material support. This appears to have
been the case following the US invasion of Iraq in 2003 (Williams 2009). The passing
of authoritarian regimes, as illustrated by the end of the apartheid era, the dissolution
of the Soviet bloc, and post-Mubarak Egypt, is often followed by surging crime rates
(Shaw 2002; Pridemore 2003a; 2003b; Pridemore et al. 2007; Daraghai 2013).
It is not surprising, therefore, that recipients of protection from state crime may
in some cases be resentful of their protectors. Images of flowers thrown in the path
of Allied forces during the liberation of Paris may be enduring, but the warmth of
the reception has not always been replicated. This resentment may itself take the
form of indiscriminate violence. Pape’s (2005) seminal work on suicide terrorism
notes that most incidents at the time of writing appear to have been inspired by
the presence of foreign troops on one’s soil, not all of whom arrived with hostile
intent. Sending an invading army (even in furtherance of a worthy cause) may pro-
voke suicide bombing (Pape and Feldman 2010). Perhaps on a less dramatic scale,
cultural influences introduced by international protectors may erode indigenous
values and informal institutions of social control.
The use of force across state frontiers may also entail unintentional technology
transfer. The secret campaign of cyber warfare, apparently waged by the United
States and Israel against Iranian nuclear enrichment facilities, resulted in the inad-
vertent release of a malicious computer virus (Sanger 2012). With the virus itself
now in the public domain, the potential exists for its appropriation by mischievous
states, criminal organizations, or individuals. With knowledge of its very exist-
ence now widespread, others may follow the example of the US and Israel and
wage cyber warfare for their own purposes. Indeed this scenario is not limited to
Israeli–Iranian cyber warfare or cyber terrorism, but various instances of this have
been reported over the past decade. The ultimate consequences of this are unpre-
dictable. Electronic attacks against U.S. financial institutions and Saudi oil facilities
may represent two examples (Perlroth 2012; Perlroth and Hardy 2013).
Aggressive intervention may also harm the intervener. Casualties and costs can
be substantial. In the Iraq War (2003–12), the U.S. Congressional Research Service
reported 4,409 total deaths of US personnel (killed in action and non-hostile) and
31,925 wounded in action.6 Estimates of the long-term financial costs of the war
reach three trillion dollars (Stiglitz and Bilmes 2008).
There can be less tangible costs as well. One might argue that the moral author-
ity of the United States has been corroded by misplaced applications of military
force over a substantial proportion of its history. That the US government and its
citizens may have seen themselves as altruistic is beside the point.
Conclusions
The downside consequences of altruistic intervention are amenable to
management, if not total preclusion. Many professions learn from their mistakes
(and from unforseen events). So too can policymakers. Perhaps most critical is the
development of knowledge of the culture into which one proposes to intervene.

Not everyone sees the world from the perspective of what 19th-century commen-
tators would refer to as “Christian gentlemen” (whose armed interventions, ironi-
cally, ushered in the age of imperialism and the “salvation” of Africa and Asia).
Not everyone responds to polite requests, economic pressure, or the threat and/
or use of force with cooperation or submission. De Waal (2012) cautions against
overlooking or ignoring the motivations and political goals of perpetrators. He
notes that the Nazi holocaust and Rwandan genocide experiences are atypical,
and that state oppression on a lesser level may be amenable to resolution through
negotiation or mediation.
Closely related is an understanding of the likely perception of the interven-
tion by recipients. Just as strategic bombing served to steel the resolve of target
populations, so too can any of the forms of intervention discussed above. A per-
ceived threat from outside may be invoked to justify domestic repression. Armed
intervention, in particular, may elicit hostile reactions. Economic boycotts may be
especially futile in a society which takes pride in resourcefulness and self-reliance,
or where there exists a robust cohort of organized criminals experienced in circum-
venting legal restrictions.
Interventions should be thoroughly planned, and “modelled” in a manner that
anticipates unintended consequences so that they can be “engineered-out.” To some
extent, this lesson has been learned in the area of economic sanctions. Blanket eco-
nomic sanctions may heighten the repressive capacity of a criminal state, encourage the
emergence of black markets, and foster organized criminal activity. So-called “smart
sanctions” which specifically target the assets of criminal leaders are an improvement,
but are by no means productive. The millions of dollars allegedly hidden away by
Bashar al-Assad may prove as elusive as those of Ferdinand Marcos.
Those involved in the intervention process should be appropriately trained and
supervised. Explicit attention should be paid to rules of engagement, and compli-
ance with those rules should be strictly monitored. Perpetrators of harm should also
be accountable for their actions. Kahl (2007, 35) reports that only a small percent-
age of US personnel responsible for the deaths of Iraqi civilians were imprisoned for
any offense. Nor should the United Nations be seen to be above the law.
Interventions should also be subject to observation by a free and robust press.
With the advent of digital technology, this goal has become much less remote than
in the past. One recalls the iconic images of Abu Ghraib, which went viral prior to
their publication in the mainstream media. It is interesting to note that US officials
requested major media companies to refrain from publishing the images, lest they
inflame public opinion in the Middle East and place US forces at significantly greater
risk. The images were already in the public domain, and it was decided that the
public interest in knowing what abuses had taken place in the name of the United
States should prevail. At the same time, media coverage of conflict situations must
be guided by a critical eye. Maren (1997) suggests that the competitive world of
humanitarian aid has moved some NGOs to be more concerned for their public
image and “market share” than they are for the well-being of their beneficiaries.
Just because efforts to control state crime will have negative consequences is nei-
ther a necessary nor sufficient justification for abandoning such attempts altogether.
Moreover, scholars who seek to classify and explain counterproductive initiatives
are not simply denigrating humanitarian intervention. They are instead advising
caution against glib responses and poorly considered measures to address a problem
with enormous implications. Such is the case of the United States and other world
powers with respect to their decision to support the rebels in Syria (2012–present).
Their fear is that arms and weapons will fall into the hands of extremists.
In the world of transportation, bridges collapse and airplanes crash. Engineers
who study such incidents do so not to discourage bridge construction or aviation,
but to make land and air travel safer. The same should be said of those who seek to
control state crime and who decide which course of action is in the best interests of
the people who are most affected.
Acknowledgements
The authors are grateful to Jeremy Farrall, Eva Marie Keanely, Dawn L. Rothe,
Michael Stohl, and Mimi Zou for their assistance.
Notes
1 The authors use Ross’s definition of state crime (Ross 1995/2000). The expressions
“state crime” and “state illegalities” are used interchangeably.
2 Although it might be helpful to distinguish between unilateral and multilateral interven-
tions, global sanctions vs. single-nation sanctions/cutoffs of aid, and interventions in the
“drug wars” and those that are invited or uninvited. This kind of advanced theorizing is
important, but not approached in this chapter.
3 One also notes recent disclosures of cash deliveries by the CIA to the offices of President
Hamid Karzai of Afghanistan (Rosenberg 2013).
4 A common strategy of insurgents is to intentionally provoke state over-reaction to pro-
test, in order to discredit the legitimacy of the criminal regime. This may well produce
victimization of innocent parties who might otherwise escape the wrath of the state
(Johnson 2004, xvi).
5 One recalls the glib quote from the Vietnam era: “We had to destroy the village in order
to save it.”
6 http://journalistsresource.org/wp-content/uploads/2013/02/RS22452.pdf (accessed
May 23, 2013).
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14
CAN AN INTERNATIONAL
CRIMINAL JUSTICE SYSTEM
ADDRESS VICTIMS’ NEEDS?
Dawn L. Rothe
Introduction
The subject of victims in relation to international criminal justice mechanisms is
a relatively new area of concern (Musila 2010; Parmentier and Weitekamp 2013;
Robins 2011; Rothe 2012; Weinstein 2011). Given the scale and scope of crimes
over which institutions such as the International Criminal Court (ICC) have juris-
diction, it seems that the analysis of the role, or lack thereof, of victims in this process
merits more attention. This is especially so given that the role of the victim within
international criminal justice has been touted as having made major advancements
since the early 1990s by providing a greater amount of victim participation. Con-
sider the 2005 survey by Stover (Stover 2005), where most victims and witnesses
who testified felt some degree of satisfaction after participating in the International
Criminal Tribunal for the former Yugoslavia (ICTY) proceedings, and Horn et al.’s
(2009) findings, which also found that the majority of those who participated as
witnesses felt it was a positive experience and would do so again. Indeed, the value
of a punitive system to respond to victims’ desires for accountability may well have
merit, at least in some cases. Parmentier and Weitekamp (2013) conducted a popula-
tion-based survey on the perceptions of Serbian people regarding accountability for
war crimes committed, prosecutions, and other forms of transitional justice in the
country. Delineated down to two main issues – the quest for justice and the search
for truth through the eyes of the population – Parmentier and Weitekamp conclude
that a large majority of the respondents believed it was of utmost importance that
the “truth” about what happened during the war be established, and that this is most
favored when done through the courts and truth commissions. An official valida-
tion of “truth,” so to speak. Additionally, they found that the issue of accountability
was most noted in the context of prosecutions at the ICTY and linked to the more
senior political and military leaders, with less emphasis and concern on “direct”
International criminal justice system 239
perpetrators who were seen as carrying out orders (Rothe 2013). One could also
consider if an international criminal justice system can provide a form of “symbolic
reparations”1 to the massive number of victims inherent in the forms of crimes
that international criminal law covers (genocide, crimes against humanity, massive
and systematic human rights violations, war crimes). In other words, even if not
all inclusive, the international criminal justice process could, theoretically, contrib-
ute to restoring a victim’s dignity through the acknowledgment of the harm done,
directly or indirectly (symbolically). A similar frame for thinking of the symbolic
value would be as a venue for “closure.” On the other hand, scholars have noted
that while some studies have found levels of satisfaction with international tribunals,
these findings do not reflect the numbers of victims who felt omitted, unsatisfied
with their limited abilities to share or explain, lack of ability to travel to the locations
outside of their country for the proceedings, and a host of other issues that have been
levied against international criminal justice proceedings by victims and scholars of
post-conflict justice, transitional justice, and restorative justice (see also Chapter 9 in
this volume). Other criticisms include claims that the solution, or redress for victims
(in any form) cannot merely come from the top down or be removed from the
specific victims to a mass victim representation via punishment of the offender; the
local and individual responses and needs must also be met in some form (Rothe and
Mullins 2008). It is no secret that the International Criminal Tribunals for Rwanda
(ICTR) and Yugoslavia have had major issues and areas of contention when it
comes to dealing with victims and victims’ needs. Given that the ICTR and ICTY
are ad hoc tribunals nearing completion, the focus of this chapter will be on the issue
of victims in relation to the ICC.
Brief overview of the ICC and the role of the victim

The ICC has several different approaches to the issue of victimization and the role
of the victim within the international criminal justice system. The overarching
distinctions revolve around: provisions to protect victims’ well-being; reparations
and the victims’ trust fund; and the how victims are to participate in various proc-
esses. Consider a much smaller difference as well, where, unlike western, primarily
United States, national proceedings wherein a victim is thought of in terms of pro-
vider of evidence for a specific case (with the limited roles of testifying and being
granted financial compensation for costs/harm), victims participating in the ICC
proceedings can be considered as such in terms of a specific situation or victims of
a case—a much broader conceptualization of victims. Nonetheless, there remain
many questions and much skepticism about the actual functioning of the Court’s
victim participation related to the representation of victims before the Court. First,
it should be noted how the Court defines a victim. According to the Rome Statute
Rules of Procedure and Evidence (Rule 85):
(a) “Victims” means natural persons who have suffered harm as a result of
the commission of any crime within the jurisdiction of the Court;
240 Dawn L. Rothe
(b) “Victims” may include organizations or institutions that have sustained

direct harm to any of their property which is dedicated to religion,
education, art or science or charitable purposes and to their historic
monuments, hospitals and other places and objects for humanitarian
purposes.
In September 2005, the Office of Public Council for Victims (OPCV), a semi-
autonomous agency administered by the Registry, was established. This office pro-
vides legal representation to the victims of crimes that have been brought before the
court. This, on the surface, is an innovation in procedure and represents the Court’s
attempts to address widespread criticisms particularly of the ICTY and ICTR in
relation to the participation of victims in Court proceedings. The Assembly of
States Parties also established a Trust Fund for Victims (TFV) of crimes within the
jurisdiction of the Court and their families. It was chartered with two mandates:
(1) to administer reparations ordered by the Court, and (2) to use resources for the
benefit of victims in relation to the harm they were subjected to under the provi-
sions of Article 79 of the Rome Statute. The latter can include direct assistance to
victims and/or programs aimed at broader community “healing” or “restoration”
such as vocational training, counseling, reconciliation workshops, reconstructive
surgery, and more. Payment can also be made to individual victims, independ-
ently of a specific proceeding, again reflecting the distinction of victims of a situ-
ation versus a specific case. With this body, the Court Chambers decide who is
an eligible victim. The Chamber can also have the TFV identify eligible victims
within specific parameters set by the Court ordering it so. Additionally, under the
reparation mandate, only those victims that were directly or indirectly affected by
crimes committed by a convicted person can benefit. Currently the TFV is operat-
ing in northern Uganda, the Democratic Republic of the Congo, Darfur–Sudan,
the Central African Republic, the Republic of Kenya, Libya, and the Ivory Coast.
To date the TFV states that it has provided support to an estimated 70,000 victims,
most of who are participants in, or indirectly benefiting from, community-based
programs. It should also be noted that donations come from countries and can be
earmarked for special projects. As of April 2011, the TFV had raised €7.3 million
from 24 countries since the outset in 2004 and has €1 million in reserve for Court-
ordered reparations. The Victims Participation and Reparations Section is the unit
of the Registry that effectuates the responsibilities of the Registrar as mandated by
the Rules of Procedure and Evidence (International Criminal Court, Regulations
of the Court, ICC-BD/01-01-04). This includes administering applications from
individuals pursuing participation in proceedings before the Court, organizing legal
representation for victims, and providing information to victims or their legal rep-
resentatives. In the Kenya case, Pre-Trial Chamber II directed the office of the
Victims Participation and Reparations Section (VPRS) to send a representative
to Kenya to ensure that all victims’ applications were complete by the Chamber’s
deadline for submissions for participation. Having highlighted many of the benefits
and objectives of the ICC in relation to victims, it should be noted that there is
another side to what has been presented above that hinders victims’ abilities to
render various forms of “justice.” These include both procedural and substantive
issues.
Victims’ obstacles
Given that recent advances for victims in international criminal justice have been
touted as major, it seems prudent to critically examine some of the main obstacles
victims face today in proceedings before the ICC. One of the more contentious
issues is that of victim inclusion as victims and as participants. Victims must follow
a process that can be quite cumbersome prior to receiving any of the “benefits”
provided by the rules and regulations of the Rome Statute. Here the victim(s) must
establish that they are indeed a victim and that she/he has been affected by the
crime and report this in a written application through the Registry. Not only is the
form long and difficult for many victims to access and fill out, but it must be com-
pleted for each stage of the proceedings (i.e., pre-trial stage, the trial stage, and the
appeals stage) (see International Criminal Court Appeals Chamber). Beyond filling
out the initial paperwork to be considered by the OPCV for aid in terms of advo-
cacy, participation, or restitution, the very definition of being a victim has been
complicated by the Court’s judicial decisions. An additional criterion has been
added to the basic definition of victim that was first established by Rule 85, through
the rulings of various chambers wherein it is stated that there must be a causal link
between the crime and the harm suffered (see International Criminal Court Trial
Chamber I, 8, paras 44–52 and see also Chung 2008). Here the burden is on the
victim to provide “sufficient” evidence to allow the Chamber to establish that the
victim has suffered harm directly linked to the crime(s) contained in the arrest war-
rant (see International Criminal Court Pre-Trial Chamber I, 29 Rule 89 and 91).
Also, the judges have wide discretion to decide the scope of victim participation
(see Rule 89 and 91). As noted by Baumgartner (2008: 430), Rule 91 makes it clear
that only victims assisted by legal representatives enjoy the specific “enhanced”
procedural rights which go beyond the right to participate in hearings (e.g., exami-
nation). This includes the victim’s representative (private or court provided) and
leaves little in the way of consistency. For example, in the Lubanga pre-trial cham-
ber, victims were allowed to participate in the confirmation hearing—those parts
held in public—and their representatives were allowed to make opening and clos-
ing statements but they were not allowed to add any evidentiary or factual state-
ments (Chung 2008). Furthermore, to be assisted by legal representation, they must
first go through the application process, be approved as a victim, and then, and only
then, will they qualify for any of the procedural rights that were intended for “the
victims” of crimes covered under the jurisdiction of the Court. There is also the
issue of legal assistance. In the Kony, et al.case, the Pre-Trial Chamber II ruled out
the possibility of obtaining legal assistance during the application phase. It has also
ruled that there is no unconditional right to legal assistance. In the Lubanga case,
Trial Chamber I did appoint the OPVC as the legal representative for victims along
242 Dawn L. Rothe
with the right to access specific documents in the case relevant to representing the
victim. The Trial Chamber in the Bemba case ruled that the OPVC could also rep-
resent victims’ concerns at the opening of the trial. However, for the Abu Garda
case, Judge Cuno Tarfusser refused to assign the OPCV any role with respect to
victim applicants, stating that the role of the OPVC and VPRS had become blurred.
Thus, victims needed to secure outside representation until their status as victims
was officially determined. Beyond these inconsistencies, victims are supposed to be
able to choose a legal representative (Rule 90 of the ICC’s Rules of Procedure and
Evidence, subpara. 1). Yet, paragraph 2 states that if there are a number of victims,
the Chamber can request that victims be grouped and have a common representa-
tive. If there is an inability to choose this common representative within a select
period of time, the Court can request the Registry to appoint one. Consider the
Bemba case (November 2010), where 135 victims had been granted participation
rights, with 1,200 more victims’ applications remaining under review. Here the
Trial Chamber ordered the Registry to utilize two common legal representatives
for all victims (including those under review) (International Criminal Court Trial
Chamber III). This removes the voice of each victim, to be heard only through that
of the appointed representative, albeit self-chosen or Court ordered. This is espe-
cially the case if we disabuse ourselves of the belief that the ICC indictments and
trials, where victims are often lumped together and given a group voice through an
“expert,” is granting them their own agency and voice. While there is validity in
the argument that inclusion of vast numbers of victims, without common represen-
tation, would be too cumbersome for efficient and timely proceedings, there
remains the disjuncture between victims’ needs and inclusion versus bureaucratic
efficiency. This is important, given that having the ability to “tell one’s story” is
believed to be an important aspect for victims, and one the Court itself recognized
in its attempts to be victim centered. In addition to the above, Rule 59 provides the
right to participate, yet it only allows “the victims who have already communicated
with the Court in relation to the case, or their legal representatives” to submit
observations (Rome Statute of the International Criminal Court Rules of Proce-
dure and Evidence, Rule 59, para. 1). There are two issues with this. First, it per-
tains to those who “have previously communicated with the Court” (Cohen 2009).
This has been defined as “victims that, whilst not having (as yet) been allowed to
participate in proceedings, have nevertheless been in contact with the Court” (Sit-
uation in Uganda, Decision on victims’ applications for participation). This applies
to victims who have presented the relevant form and duly registered it with the
Registry. Second, Rule 59 refers to “a case” rather than “a situation.”2 Thus, vic-
tims are more restricted in the case than the situation.3 However, the majority of
“situation victims” will most “likely not be accepted in a case as the specific inci-
dent in which they were victimized may well either not be investigated or be the
subject of a specific case” or without a direct causal link between harm and crime
(Baumgartner 2008: 416). Those individuals are potentially then left with “unful-
filled hopes and expectations,” and might be subject to revictimization (ibid).
Additionally, as is projected in the case of Sudan and Darfur, there are significant
numbers of situation victims, yet few case victims. This lends to a vast number of
victims that will be left out of certain “benefits” afforded to case victims. This could
impact their rights to direct reparations, first as a qualified victim and then through
a secondary process wherein a decision on reparation must be requested by the vic-
tims in writing. This requires completion of a quite comprehensive and detailed
application that differs from other participation applications. Furthermore, ques-
tioning in a reparation hearing is more thorough and the standard of proof is much
higher for reparation purposes than other stages of proceedings. Related to repara-
tions, one must also note that the TFV, which is the financial source for reparations
on both individual and community levels is prey to political interests and influence.
The funds can be earmarked by donors for specific cases or types of projects leading
to additional unequal distributions for victims of both cases and situations (see
International Criminal Court Regulations para. 27). This includes donations in
general as well as those by states (if they have been raised by a member of the board
of directors (see International Criminal Court ASP/6/Res. 3). The Court’s capac-
ity to handle huge numbers of victim applications is extremely limited, given the
“typical” numbers of victims of these types of crimes which impacts the above, as
well as the utility of it in terms of victims’ needs. Consider that as of March, 2011,
VPRS had received 4,773 victims’ applications to participate in Court proceedings,
having submitted 332 completed reports to the Court. Given the number of vic-
tims applying to participate, the office is unable to process the applications in an
efficient and timely manner. Furthermore, as the Table 14.1 highlights, nearly
50 percent of victims that make it through the application process and identified as
a victim are allowed to participate and a scant few of those received any
reparations.
Chung (2008: 3) notes that, from the onset of the trials,
the first five hundred or so applications to participate in investigation and

pre-trial proceedings had jammed in the machinery of the proceedings. . . .
The record of proceedings showed that applicants typically waited for over
a year to learn whether they would obtain the “status of victim,” . . . Less
TABLE 14.1 Case-specific victim data
Proceeding Number of victims’ Number of victims Number of victims’

applications for authorized to applications for
participation participate reparations
Democratic Republic of Congo 1,105 680 176
Uganda 1,012 73 406
Darfur 208 206 83
Cental African Republic 2,389 1,312 829
Kenya 59 0 537
Total 4,773 2,259 2,031
Source: International Criminal Court, Office of Public Council for Victims 5/2/2011; see also Office of
Public Council for Victims (2010, 9).
244 Dawn L. Rothe
than a hundred victims had obtained even this theoretical right to participate
nearly two years after the first decision on victims’ participation. From those
eligible to participate, moreover, less than a handful of applicants had mean-
ingfully participated in any specific ICC proceeding.
On the other hand, there is a concern that the enhanced participation of victims
raises issues with equality of arms4—though the reality of equality of arms is that
the danger has more to do with the processes of constructing and proving “truth”
and the procedures that dictate the defense’s ability to defend and to see all “facts”
provided by the prosecutor to the judges (see Rothe and Overton 2010). Indeed,
there is a high level of discrepancy/selectivity between victims who are able to
participate in ICC proceedings given the above mentioned factors as well as others
including victims’ geo-political situation. This is another issue that needs to be rec-
onciled—one cannot or should not discount victims for ease of access or temporary
geographical placement. This potentially impacts the process of “truth-making” and
“knowledge” that becomes a statement of fact of events through the exclusion of
victims. As previously stated, utilizing common representatives also negates certain
components of this “truth” generation and historical fact. Given the extant restora-
tive justice literature, this component is important as many victims of mass crimes
want to not only tell their stories but to ensure a historical record of the events.
When victims are omitted from this process, it fails to fulfill a potential resource of
restoration and a holistic version of the “truth” which many victims desire (Robins
2011). In these situations, not even symbolic reparations can be achieved from inter-
national criminal justice; victims must either forfeit this or create their own historical
record (Figure 14.1). Such has been the case with many victims that were omitted
from the judicial processes after the bombing of Dubrovnik, Croatia.
Of course there are the more fundamental issues which include whether inter-
national prosecutions really contribute to victims’ peace and/or reconciliation (see
Chapters 9 and 12 in this volume). After all, any calls for increased levels of partici-
pation of victims in the ICC (or international criminal justice (ICJ) proceedings in
general) assume that victims either do or can benefit from participating, directly or
indirectly; simply, that these processes can contribute to victims’ healing or attaining
a sense of closure. Yet consider that this concept of closure implies a mental state
where any cognitive dissonance is resolved and a sense of resolution is achieved
where victims can “effectively” move on past the trauma they suffered (Weinstein
2011). While questionable, given the experiences of many victims of mass violations
of human rights or other crimes covered within the purview of ICJ, if we accept that
this has truth, then we must recognize the contradictions present in the procedural
and substantive policies and practices of the ICC that impede this.
Conclusion
Undoubtedly, the ICC has made strides towards victim participation, well beyond
what the ad hoc tribunals offered, and, in many cases, many domestic court systems.
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I TRIED TO EXTINGUISH IT IN THE ATTIC WITH HAD TO
FAILED. SHELLS KEPT FALLING AND WE
WITH FEW BUCKETS OF WATER, BUT I
I TRIED TO EXTINGUISH IT IN THE ATTIC BUTANE GAS CANISTER, THE LAMP, AND MY SISTER'S SHOES
MYMTER
SECON FLOOR TO TAKE TH MOST IMPORTANT DOCUMENTS MY SISTER'S SHOES. MYMTER M E B
MOST IMPORTANT DOCUMENTS, BUTANE GAS CANISTER, THE LAMP, AND
TAKE THE AC*SS A
SECOND FLOOR TO SOMEHOW, 1 TOO MANAGED TO RUN
HOUSE WITH BLANKETS | E R HER HEAD.
MANAGED TO RUN TO THE NEIGHBOUR'S BURNING FLAMES IN ^DELUSIV
HEAD. WE THREW POTS, PANS AND BOTTLL~FILLED WITH WATER INTO THE
LATER WITH A POT ON MY OMBS!!! K
NTHEHOUSE,THREEOFTHEMINCEND1ARYB
BYTHENIGHTFALL,7MORTARSHELLSFELLO
THANK GOD WE WERE NOT HURT!
ZAB, SR ORACRVNOI GO! ZLOCINCI STRA-

E NE
DA CAS199 RO PS KO RSKI
BROVNIKA!
1. RANO UJUT U POVIJESTI DU
, 6.PROSIN JI PETAK
Nadan sv.Nikole JE BIO NAJCRN
LI NAS GRAD. TO
HOVITO SU NAPA SKO CRNOGORSK
I ZLOCINCI STRA-
CINCI STRA-
O UJU TRO , SRP
CRNOGORSKI ZLO
Nadan sv.Nikole, 6.PR
OSINCA 1991. RAN
UJUTRO, SRPSKO
sv.N ikol e, 6.P RO SINCA 1991. RANO I STR A-
Nadan O UJUTRO, SRPSKO
CRNOGORSK I ZLO CINC
OSINCA 1991. RAN I ZLOCINCI STRA-
Nadan sv.Nikole, 6.PR , SRPSKO CRNOGORSK
an sv.N ikole , 6.PR OSIN CA 1991. RANO UJUTRO STRA-
Nad RO, SRP SKO CRN OGORSKI ZLOCINCI
I ZLOCINCI STRA-
UJUT
OSINCA 1991. RANO
Nadan sv.Nikole, 6.PR , SRPSKO CRNOGORSK
CA 1991. RANO UJUTRO
Nadan sv.Nikole, 6.PROSIN RO, SRPS KO CRNO GOR SKI ZLOCINCI STRA-
RANO UJUT
Nadan sv.Nikole, 6.PROSINCA 1991. ORSKI ZLOCIN CI STRA-
UJUTRO, SRPSKO CRNOG
Nadan sv.Nikole, 6.PROSINCA 1991. RANO
CRNOGORSKI ZLOCINCI STRA-
Nadan sv.Nikole, 6.PROSINCA 1991. RANO UJUTRO, SRPSKO
CRNOGORSKI ZLOCINCI STRA-
Nadan sv.Nikole, 6.PROSINCA 1991. RANO UJUTRO, SRPSKO
Nadan sv.Nikole, 6.PROSINCA 1991. RANO UJUTRO, SRPSKO CRNOGORSKI ZLOCINCI STRA-
HVALA BOGU, OSTALI SMO NEOZLIJEDENI!
LEST WE FORGET !
OUR CITY WAS SAVAGELY ATTACKED EARLY IN THE MORNING
BY THE SERBIAN AND M O N T E N E G R I N ARMY ON ST.
6"' DECEMBER 1991. IT WAS THE SADDEST FRIDAY IN THE N i « L A S ^ W
HISTORY OF DUBROVN1K! AT 7 O'CLOCK THAT MORNING.
TJW C R Q ^ M P
THE MOUNT OF SRD WAS DESTROYED.
ALREADY AT 7 10 A.M.. A SHELL, ONE OF THE FIRST TO HIT
THE CITY, HIT OUR HOUSE. AT 7:20 THE THIRD FATEFUL
1 TRIED TO EXTINGUISH IT IN THE ATTIC WITH FEW BUCKETS ONE SET O U R flOUaBiÎREI
OF WATER, BUT I FAILED. SHELLS KEPT FALLING AND
WE H A D TO ABMRMU T H g
Bl KM\G HOUSE! I CARRIED MY OLD MOTHER (AGED 88) TO
THE GROUNDFLOO R AND THEN TO THE NEIGHBOURH OOD.
SECOND FLOOR TO TAKE THE MOST IMPORTANT DOCUMENTS. 1 RAN TVHCE TO T H j
BUTANE GAS CANISTER, THE LAMP, AND MY SISTER'S SHOES.
MANAGED TO RUN TO THE NEIGHBOUR'S HOUSE WITH BLANKETS MY S 5 T E R M E M E A
OVER HER HEAD. SOMEHOW, I TOO MANAGED TO RUM
LATER WITH A POT ON MY HEAD. WE THREW POTS, PANS AND ACROSS A L I T T I E
BOTTLL5 FILLED WITH WATER INTO THE BURNING F L A M
E S IN A D E L U S I V E H O P l
Y THE NIGHTFALL. 7 MORTAR SHELLS FELL ON THE HOUSE,
THREE OF THEM INCENDIARY BOMBS!!!
H^MTVSjivTsF'jTTS^r^PTTil
FIGURE 14.1 A self-memorial of atrocity taken May 2011 in Dubrovnik, Croatia

246 Dawn L. Rothe
Additionally, there is merit to the concept of symbolic reparations for some victims,
which have been omitted from the formal criminal justice process that includes
the “vindictive” or punitive component that international justice can provide, as
indeed some victims do state this is what they seek in order to achieve some form
of closure. As stated by Cassesse (2011: 271), “It [criminal justice] channels the
victims’ hatred and yearning for bloody revenge into collective institutions that
are entrusted with even-handedly appraising the accusations. If well founded, they
assuage the victims’ demands by punishing the culprit.” However, given the lack of
empirical support at the national level for victim satisfaction with domestic crimi-
nal justice systems and weak data from victims having dealt with the ICJ systems,
it is not likely that the ICC will fare any better: especially so in light of the issues
highlighted here—from the more abstract, being the ability of victims to main-
tain agency within the process, to concrete fundamental issues associated with the
Court’s structure and procedures. This includes those thousands of situation victims
not recognized or those where a case is never formed. Also, the many who fail to
be labeled as case victims and are omitted from the Court’s trials are not given the
option of the processes that may or may not aid in their healing (with the exception
of potential community programs developed for victims). Consequentially, many
victims are left out of the process, and thus never able to feel vindicated, voiced, or
heard, not receiving benefits of participation or restitution. This also impacts the
overall historical record of truth that many victims want and need. The issue of
common representation, while efficient, may not be in the best interests of the vic-
tims. According to Rule 90, subparagraph 4, “The Chamber and the Registry shall
take all reasonable steps to ensure that in the selection of common legal representa-
tives, the distinct interests of the victims, particularly as provided in article 68 para-
graph 1, are represented and that any conflict of interest is avoided.” The interpre-
tation of “distinct interests” is not only subjective, but lends to potential abuse as it
is only the victims that can know their own interests. There are also issues with the
inconsistent rulings that deal with the role of victims and their rights to participate
and in what manner or at what stage. This leaves individuals subject to an overall
unequal treatment for participating where victims’ roles are dependent upon each
Chamber and the discretion of the Judge. This includes all stages and, perhaps most
problematic, that of the outset, where the labeling process of being a victim begins
within the formal setting. This can leave some victims feeling revictimized by the
system, given that the treatment of one may well be different than that of another
due to assignment of Chamber and/or case. As such, the Office of Public Council
for Victims’ (2010: 11) claims are overstated, as it suggests that it has,
managed to promote, in a short period of time, numerous goals which cham-

pion victims’ rights in international criminal law, by, inter alia, i) Facilitating
the process by which victims, through their participation before the Court,
can “tell their story” and have a recognised voice in the proceedings, [and]
ii) Contributing to victims’ general awareness of their ability to influence
the proceedings before the Court by actively responding to any requests for
information and by helping them navigate the procedural steps required for
their participation, thereby promoting their sense of empowerment.
The issue of the role of victims is indeed a mixed one at both national and
international levels of criminal justice. This is also the case with the ICC as the
“realities” of such proceedings having a positive impact, especially so in light of the
many obstacles and issues associated with victim participation, remains debatable.
This is not to downplay the advancements made over previous ad hoc systems,
yet, we must first begin with re-examining the value of any criminal justice venue
as a means for victims’ restoration or closure. Simply, if the goal is truly to be a
victim-centered court, then one must first question the validity of the criminal
justice process itself, followed by the acknowledgment that such a setting may not
be capable of addressing massive numbers of victims’ needs as those encountered
by the ICC. Given these issues, the roles of victims and the ICC merit continued
attention, monitoring, and future research.
Notes
1 A concept Frederic Megret (2009) defined where the symbolic reparations attempt to
restore victims’ dignity by acknowledging the harm done—serving to be transformative
rather than punitive.
2 For a more detailed discussion see Cohen (2009).
3 See Hall (2008).
4 The principle of equality of arms is a recognized and inherent element of the due process
of law in international criminal proceedings. From the procedural perspective, equality
of arms is meant to secure the same procedural rights and guarantees to both the defense
and the Office of the Prosecutor. This includes pleadings, pieces of evidence, equal time
and means for preparation, entitlement to reply to and comment on the other parties’
allegations and to reply to and comment on the supporting evidence.
References
Baumgartner, E. (2008). Aspects of Victim Participation in the Proceedings of the Interna-
tional Criminal Court. International Review of the Red Cross 90, 870: 409–40.
Cassesse, A. (2011). Reflections on International Criminal Justice. Journal of International
Criminal Justice 9, 1: 271–5.
Chung, C. (2008). Victims’ Participation at the International Criminal Court: Are Con-
cessions of the Court Clouding the Promise? Northwestern Journal of Human Rights 6, 3:
459–545.
Cohen, M. (2009). Victims’ Participation Rights within the International Criminal Court:
A Critical Overview. Denver Journal of International Law and Policy, Summer. Online.
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Horn, R., Charters, S. and Vahidy, S. (2009). The Victim-witness Experience in the Special
Court for Sierra Leone. International Review of Victimology 15: 277–98.
Megret, F. (2009). The International Criminal Court Statute and the Failure to Mention
Symbolic Reparation. International Review of Victimology 16: 127–47.
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Musila, G. (2010). Rethinking International Criminal Law: Restorative Justice and the Rights of
Victims in the International Criminal Court. Lambert Academic Publishing.
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(accessed September 11, 2013).
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Documents
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Court: Observers’ Notes Article by Article 637, 640 (Otto Triffterer ed., 2nd ed. 2008).
International Criminal Court ASP/6/Res. 3. Online. Available http://www.iclklamberg.
com/Caselaw/CAR/Bemba/PTCII/424.pdf.
International Criminal Court Regulations para. 27, see International Criminal Court
ASP/6/Res. 3.
International Criminal Court Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo,
Decision on Common Legal Representation of Victims for the Purpose of Trial, ICC-
01/05-01/08-1005, 6.
International Criminal Court, Office of Public Council for Victims 5/2/2011.
International Criminal Court Appeals Chamber (para. 44), The Prosecutor v. Thomas Lubanga
Dyilo, 13 Feb. 2007 No. ICC-01/04-01/06 [para.] 1813.
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Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in
the Case the Prosecutor v. Thomas Lubanga. No. ICC-01/04-01/06-172.
International Criminal Court Trial Chamber I, 8. Decision on “indirect victims”, 8 April
2009, ICC-01/04-01/06-1813, [paras] 44–52, http://www.icc-cpi.int/iccdocs/doc/
doc662407.pdf.
Rome Statute of the International Criminal Court Rules of Procedure and Evidence.
Rome Statute of the International Criminal Court. (Article 79).

Situation in Uganda, Decision on victims’ applications for participation a/0010/06,
a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-
02/04-101 (Aug. 20, 2007) [para.] 93.
Situation in Uganda, Decision on victims’ applications for participation a/0010/06,
a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-
02/04-101 (Aug. 20, 2007) [paras] 11–21, 96–111.
INDEX
Abu Ghraib prison 35, 40, 233 Andreas, P. 228

abuse: by peacekeeping forces/NGO anger, overcoming 197
workers 230; state institutions Angola 217, 223n.2
(NZ) 47–9; by U.S. 233 anti-immigration legislation 93
access, to justice/accountability 174, 175, anti-immigration measures, Arizona 98, 99
186, 188n.1 anti-immigration movement 88, 89, 102
accountability: access to 174, 175, 186, anti-immigration policies 99, 100, 101–2
188n.1; and class 183; and European apartheid: defined 212, 216; legislative
Court 175–6; institutions of 173; framework 213–16; resistance to 215;
intersectional approach 184; process South Africa 212–23
of 184; restorative 207; for state area bombing 114
crimes 125; of states 174, 182, 184; Arendt, H. 98
victims’ desire for 238 Arizona 98, 99
accountability theory 175 Arizona v United States 98
acknowledgement, of harm done 239 armed interventions: and imperialism 232;
Act of Union, British/South Africa 213, unintended consequences of 230–2
216 Assange, Julian 226
acts, of omission/commission 8, 11 see also Assembly of States Parties 240
omission, crimes of Associated Press 230
Acute Stress Disorder (ASD) 220 atomic weapons 114–15
Afghanistan 119, 234n.3 atrocity(ies) see also massacres: bombing
African American males, and criminal of civilians as 114 see also bombing of
justice systems 68 civilians; and capital accumulation 44;
African National Congress (ANC) 215–16, Colombia 192, 197, 207;
217 disowning 37–40; politics of 34–7; and
Aguablanca program 208 restorative justice 205; term 42; U.S.
aid, competitive world of 229, 233 wartime 35–43
air power, rise of 112–16 see also bombing attrition through enforcement 97–9, 102,
of civilians 103, 104
Albania 230 AUC (Autodefensas Unidas de
American Civil War 122 Colombia) 191
Amnesty International 26, 28, 139 Azanian People’s Liberation Army
anchorage 40 (APLA) 216
Index 251
Bantu Authorities Act No 68 1951 Brazilian Act on Criminal

(SA) 215 Contraventions 22
Bantu Building Workers Act No 27 1951 Brazilian Statute of the Child and
(SA) 215 Adolescent 23
Bantu Education Act No 47 1953 Bremer, Paul 44
(SA) 215 Brennan, John O. 121
Bantu education system 217 British Empire 213
Barthes, Roland 40 broader victims 8
Basque people, bombing of 113 Buchinger, K. & Steinkellner, A. 181
Baumgartner, E. 241 Bureau of Investigative Journalism
begging 21, 22 (BIJ) 120, 121
belonging, spirit of 196 Bush, George H. W. 118
Bemba case 242 Bush, George W. 119
Benjamin, M. 121 Bush, M. & Rizzini, I. 26
Berndt, A. 26, 29 businesses, access to European Court 183
Bess, M. 114, 115
Bigelow, Katherine 43 Canadian Somali Congress 73
Bijleveld, C. 10 Candelária Massacre 25–6
blameworthy harm 7, 111 Cape of Good Hope 213
Blum, W. 119 Capital 43
Body in Pain, The 37 capital accumulation: and atrocities 44;
body parts, trade in 90 and border permeability 89; as objective
Boer War 213 violence 42; wages of whiteness 92
Bolsa Família 15 capitalism, disaster 44
bombing of civilians see also drone strikes: capitalist order 43
as crime against humanity 115; Cappelletti, M. & Garth, B. 175
Guernica 113–14; Gulf War 118, 231; Carroll, James 117
Hiroshima/Nagasaki 114–15, 116; Case of Handölsdalen Sami Village and
history of 111–21; and International Others v. Sweden 186
Humanitarian Law (IHL) 121–3; Case of Lilja v. Sweden 182
Iraq 119; Korea/Vietnam 116–17; Cassesse, A. 246
moral acceptability of 110, 114, 118; catergorical intersectional approach 176–9
Serbia 119; as state crime 110, 121; by Cavarero, A. 36, 42
U.S. 111–21, 126; as war crime 111, Central Intelligence Agency 116, 120
115, 116, 123; WWI 113; WWII 114, Chambliss, William 4
227; Yugoslavia 118 child protection, lack of/Brazil 23
border control, and sovereignty 88, 89 children see also street children: Brazil/
border/immigration policies, racialized child labor 24; drug-trafficking 18; in
nature of 91 institutions/depression 50; low-paid
Border Patrol 95 jobs 21; placement in secure units
border permeability 88, 89 (NZ) 47; prisons (SA) 217–18; and
border policies, supply side 91 sanctions 228; state-led victimization
Bosnia 149, 160–6, 167n.9, 229 of 54, 55; trafficking 141–2
Brayson, K. & Millns, S. 182 choice, constrained/street children 20
Brazil: child labor 24; economy 15; Christian Theology, healing 221
homicides 15, 16, 27; human rights 24; Christie, Nils 51, 54
income inequality 15; poverty rate 15; Chung, C. 243
social divide 29; social wellbeing 15; citizenship: gendered perspective 174;
state omission/penalization of undocumented immigrants 88
poverty 23–5; state violence/ citizenship status, and human rights 174,
death squads 25–7; street children 181
phenomenon 17–20; street situation civilians killed, peacekeeping missions 231
in 20–2; torture 28; violence 15; civil regulatory law, violations of 4
violence in youth detention centers 27– Civil Rights Act 1964 92
9; youth mortality 26 civil rights movement 92
252 Index
claims: circularity of 53; European criminalization: of migrants (U.S.) 97;

Court of Human Rights 179–81, street children 22; of victims 53, 54
185–7; limitations on 56; against NZ criminal justice system: international/
government 48–9, 61, 63n.29 and victims 238–47; and minority
Clark, Ramsey 118 groups 68
class, and accountability 183 criminogenic effects, sanctions 228
Clinton, Bill 118, 119 Criminology 4
closure, and criminal justice systems 246 Croatia 244, 245
Coalition for International Justice 10, Cronin, B. 231
12n.1 Cuba 227
Code of Criminal Procedure cultural life of the dead 34–7, 38–9
(Colombia) 207 cultural myth of the frontier 112
Cohen, Stanley 34, 36, 38 cultural politics, of war 37
Cold War 112, 116; post-Cold War cultural protection 198
era 117–19 culture: and imperialism (U.S.) 34, 43;
collectiveness, spirit of 196 white America/protecting 92
Colombia 207–10; conflict 191–6; Cumings, Bruce 117
forced displacements 194–5, 200, Curran, L. & Noone, M.A. 175
207–8; healing of victims pain 197–201; cyber warfare 232
kidnappings 193–4, 199–200, 204, 208; cycle of harm 80
perceptions of harm 193–6; restorative
justice 204–7 DANE 196, 210n.5
Colombian Political Constitution 207 Danieli, Y. 220
colonialism, and humanitarian Darfur 10, 227, 242
interventions 229 dark figures 10, 11
colonial present 38 Dayton Peace Agreements 1995 149
colonisation, South Africa 213 death squads, Brazil 25–7
COMLURB 24 deep periodical healing program 200
Commission of Inquiry for the dehumanization, and immigration
International War Crimes Tribunal policy 97
118 Dembour, M.-B. 173, 181–2
Committee on Reparations and democracy, white 91–3
Rehabilitation (CRR) (SA) 222 Democratic Republic of Congo 10, 229
communism, South Africa 215 denial: interpretive 38; and killings in
communities, safe/and social war 37; spiral of 36, 38; of state
interaction 101 offending 55; and U.S. neoliberal
community health, and anti-immigration military power 34
policies 101 Department of Social Welfare (NZ) 47
compensation, paid by states 185–6 see also depression, children in institutions 50
reparations Detainees’ Parents’ Support Committee
Congo 10, 229 (1987) (SA) 217
consequentialism 225 detention centers, street children in adult 21
controls by international community, deviant place theory 11
causing re-victimization 227–32 De Waal, A. 229, 232
Cooley, A. & Ron, J. 229 De Waal, A. & Omaar, R. 230
Cornelisse, G. 181 Differential Association 4
corporate offenders 125 dignity, of victims 209, 239
Cosmo-vision 198 disaster capitalism 44
crime(s): apartheid 216; defining 7; dual discourses, on drug use 68
purpose 73; economically driven 72–3; discrimination: and European Court 186–
against humanity 115, 116, 124, 212; 7; street children 21
of omission 8, 9, 133, 135–42, 143; displacement, forced: Bosnia 165–6,
against peace 124; of power 125; rates/ 167n.9; Colombia 194–5, 200, 207–8;
following armed interventions 232 helping victims 208; reparations 204; as
criminal involvement, street children 21 victimization 160, 161
Index 253
domestic violence, and street children 19 European Union (EU) 66

doubly-dark figure 10, 11 exceptionalism, American 111–12
drone strikes see also bombing of civilians: exclusion, street children 23
death toll 120; Pakistan 120, 121, 231; expectations, and street children 20
U.S. 38, 119–21 exploitation, of migrants 96, 97
drug cartels 91
drug-dealing, in favelas 24 facts, limits to/legally digestible 58–9
drug mules 97 Falk, R. 114, 115
drug policies, reducing family, support/and healing 197
victimization 103–4 FARC (Fuerzas Armadas Revolucionarias
drugs: decriminalization of 104; illegal/and de Colombia) 191
street children 20 fast-track arrest-and-release episodes 74
drug trade, child labor in 24 Faust, K. & Kauzlarich, D. 133
drug-trafficking, children 18 favelas 18, 24
drug use: discourses on 68; street fear: of labeling/as illegal immigrant 99;
children 22 and public health/immigrants 99–103,
dual purpose crime 73 104; racialized 104
Dubois, W.E.B. 92 female applicants, European Court of
Dutch East India Trading Company 213 Human Rights 181–2
fetishistic disavowal, and U.S. state
earthquake, Haiti 135–6 violence 36, 38
East African Seafarers’ Assistance Program 72 fishing, and Somali piracy 73, 78, 79, 80
economic order, new international 116 forced displacements: Bosnia 165–6,
economic sanctions, unintended 167n.9; Colombia 194–5, 200, 207–8;
consequences of 227–9, 233 indigenous groups 195; reparations 204;
education: Bantu education system 217; as victimization 160, 161
and street children 28 foreign policy, U.S. 112
Eisenhower, Dwight D. 117 forgiveness 199, 201
elderly, and sanctions 228 Franco, Francisco 113
electroconvulsive therapy, as Franks, Tommy 34
punishment 49 free trade agreements 88
elites, and post-conflict justice 166 frontier, cultural myth of 112
ELN (Ejército de Liberación
Nacional) 191 GAULA 194, 210n.3
Emergency Medical Treatment and Active gender, and access to European
Labor Act (EMTALA) 102 Court 181–3
empire/empire building, U.S. 34, 111, gendered violence, internally displaced
112, 116 persons 139–42
End Illegal Immigration 89 gender relations, and victim status 56
Englehardt, T. 113 General Assembly, United Nations
equality of arms 244, 246n.4 (UN) 216
Eschbach et al. 93 general victims 8
ethnic cleansing 165 Geneva Convention for the Amelioration
European countries, views of Colombian of the Condition of the Wounded in
guerrillas 208 Armies in the Field 1864 122
European Court of Human Rights 173; Geneva Conventions 1949 122–3, 125
access to 182–5; access to justice/ genocides: Nazi Germany 4; Rwanda 9,
accountability 175–6, 177, 178; 10, 229; South Africa 220
claims of non-citizens 179–81; Germany, bombing of 114
and discrimination 186–7; female ghosts of the dead 36
applicants 181–2; nature of claims 185– globalization: and permeability of
7; privileged applicants 173; process borders 88; structural violence of 91
in 176; and racial discrimination 186–7; Global Justice Clinic 121
selectivity of 187; and victims of human Gordon, Avery 36
rights violations 188 Great Powers, and war crimes 125–6
254 Index
Great War see World War I humanistic approach, classification of state

Green, P. & Ward, T. 73 crime 6
Gregory, D. 38 humanitarian intervention: improving
Grenada 118 outcomes of 233; unintended
Group Areas Act (Act 41 of 1950) consequences of 229–30
(SA) 214 human rights see also rights: access to
Guardian 41 justice 175; and apartheid 212;
Guernica 113–14 Brazil 24; and citizenship status 174,
Guiding Principles on Internal 179, 181; claims/and identity(ies)
Displacement (GPID) 133–4, 135, 137, 174–5; and natural disasters 134; social
138, 140, 141, 142 groups vulnerable to 173; and street
Gulf of Aden 66, 69, 70, 71, 74, 75 children 23, 25–7, 28; undocumented
Gulf War 1991 118, 231 immigrants 104; violations/and
Gusterson, H. 35 power 183
human rights violations: pattern of
Haditha Massacre 35 preparation 4; South Africa 216, 217
Hagan, John 5 Human Rights Watch: Brazil 26, 28;
Hague peace conferences 1899 and Haiti 136, 137, 139, 140, 142
1907 122 human smuggling 91, 95–6, 103
Hague Rules of Aerial Warfare 113 human trafficking 96, 141–2
Haiti, state crime/re-victimization 135–42, hunger, street children 20
143 Hurricane Katrina 133
harboring, undocumented Hussein, Saddam 118
immigrants 98–9 Hussen, Ahmed 73
harm(s): acknowledgement of 239; hyper-criminaliziation, of undocumented
blameworthy harm 7, 111; concept immigrants 90, 98
of 168n.12; cycle of 80; defined 7;
during/after war in Bosnia 166–7; identity(ies): and human rights claims
legacy of/state responsibility 55; 174–5; victim 59
nature/boundaries of 58; perceptions illegal immigrants see also undocumented
of 193–6; secondary levels of/anti- immigrants: fear of labeling as 99; health
piracy policies 80; to undocumented care 102, 103; and labor supply 89–90;
immigrants 99 as sub-citizens 92
Hathaway, J. 134 ill-treatment, youth detention centers 28
healing: institutional assistance 201–4; immigrants: lack of access to public
sharing with others 199–201; health 90; undocumented 87, 90, 98,
South Africa/TRC 221; of victims 99, 100–1; white 91
pain 197–201 immigration, and fear/public
health: necropolitics of 90; and social health 99–103
connectedness 102; and structural immigration control, as war-fighting 97
inequalities 100; undocumented immigration law, zero tolerance 99
immigrants 100–1 immigration policy(ies): and
health care providers, criminally liable/ dehumanization 97; reducing
health care to illegal immigrants 102, victimization 103–4; and social
103 injury 93–9; theorizing 87–93; U.S. 87
health impacts, of anti-immigration immigration reform 104
policies 101–2 Immigration Reform and Control Act
Hentig, Hans von 3 1986 (U.S.) 88
herenvolk democracy 92 Immorality Amendment Act 21 1950
Hersh, Seymour 35 (SA) 215
hierarchy, citizen-related 179 immunity, for powerful states 126
Hiroshima/Nagasaki 114–15, 116 imperialism: and armed interventions 232;
homicides, Brazil 15, 16, 27 and humanitarian interventions 229;
Horn et al. 238 open door/informal 112, 118; U.S. 34,
housing, favelas 18 36, 43, 111–12, 116, 119
Index 255
incarceration see also prison: minority former Yugoslavia (ICTY) 238–9,

groups 68; New Zealand 62n.21 240
“incidents” 42 International Humanitarian Law (IHL):
income inequality, Brazil 15 and atomic bombing of Japan 115;
income, loss of/as victimization 160 and bombing of civilians 121–3;
indentured servitude 141 disproportionate military force 120;
indigenous groups: and access to legitimizing state violence 124; and
accountability 174, 186, 188n.1; noncombatants 110–11
collective persecution of 195–6; forced International Human Rights and Conflict
displacements 195; and healing 208; Resolution Clinic 121
spirituality of 198 International Labor Organization
inequalities: income (Brazil) 15; social Convention Number 182 (ILO
groups 177 2000) 23
informal imperialism 118 international law see also law(s); legislation:
institutional assistance, healing 201–4 adverse consequences of 67; and
institutional victimization, apartheid bombing of civilians 111, 124; and
as 212–23 drone strikes 120; lack of enforcement/
institutions of accountability 173 legitimation of violence 123–4; paradox
institutions, violence in 52 of 121–5
Inter-Agency Standing Committee International Maritime Bureau (IMB) 69,
(IASC) 134, 144n.1; Operational 81n.2
Guidelines on Protecting Persons in International Maritime Organization 71
Natural Disasters 134, 135, 137, 138, International Military Tribunals:
141, 142 legitimizing bombing 124;
intercategorical approach 177 Nuremberg 122, 123, 125; Tokyo 123,
Interim Constitution (Act No 200 of 1993) 125
(SA) 216 international political community 81n.5
internally displaced persons (IDPs) 131–2; International Red Cross 122
guiding principles on treatment international trade 88
of 133–5, 137, 138, 140, 141, 142; international treaties, and cross-border
re-victimization of 132–5, 142; flows 88
rights of 137; security/gendered internment, street children 27
violence 139–42; state responsibility interpretive denial 38
towards 132–3 intersectional approach: accountability 184;
International Convention on the categorical 176–9
Suppression and Punishment of the interventions: counterproductive 226;
Crime of Apartheid (ICSPCA) 216 improving outcomes of 233
international corporations, toxic Iran, sanctions 227
dumping 73 Iraq: bombing of civilians 119; civilians
International Court of Justice 125 killed 118; invasion of Kuwait/U.S.
International Covenant on Civil and involvement 118; sanctions 227,
Political Rights (ICCPR) 134, 222 228; U.S. invasion/occupation 34–5,
International Covenant on Economic, 44, 119, 232; U.S. involvement
Social and Cultural Rights in/deaths 33–4
(ICESCR) 134 Iraq War 2003 118, 230–1, 232
International Criminal Court (ICC) 207; Israeli-Iranian cyber warfare 232
overview of 239–41; victim
participation 238, 244, 246; victims’ Janjaweed 227
obstacles 241–4 Japan, bombing of/by 114
international criminal justice system, and Jim Crow society 92
victims 238–47 Jochnick, C. & Normand, R. 123
international criminal law 6, 125 Johns Hopkins University 119
International Criminal Tribunal for Johnson, Lyndon 117
Rwanda (ICTR) 239, 240 judicial system, womens’ access to 181–2
International Criminal Tribunal for the jus ad bellum/jus in bello 122
256 Index
justice: access to 175; administered law(s): Act of Union (British/South

by naval forces 74; and European Africa) 213, 216; anti-immigration 93;
Court 175–6; post-conflict 166; apartheid 212; Bantu Authorities Act
restorative vision of see restorative No 68 1951 (SA) 215; Bantu Building
justice (RJ); and Somali pirates 74–80; Workers Act No 27 1951 (SA) 215;
transitional see transitional justice (TJ) Bantu Education Act No 47 1953
Justice and Peace Law (Colombia) 191–2 (SA) 215; children’s rights/Brazil 23;
Justice and Peace Law tribunals Emergency Medical Treatment and
(Colombia) 208 Active Labor Act (EMTALA) 102;
juveniles, prisons (SA) 217–18 Group Areas Act (Act 41 of 1950)
(SA) 214; Immigration Reform and
Kagee, A. 220 Control Act 1986 (U.S.) 88; Immorality
Kahl, C. 231 Amendment Act 21 1950 (SA) 215;
Kauzlarich et al. 133, 135 Justice and Peace Law (Colombia)
Kennedy, Paul 125 191–2; Land Act 1913 (SA) 214;
Kenya 240 Law on Alternative Sentencing 2003
kidnappings, victims of 193–4, 199–200, (Colombia) 207; Mines and Works
204, 208 Act 1911 214; Natives Act 67 1952
Kill Anything that Moves: The Real American (SA) 215; Natives Laws Amendment
War in Vietnam 117 Act 54 1952 (SA) 215; Pass Laws 212,
knowledge, and access to 213–14, 215; Peace Preservation Acts
accountability 174, 184 (SA) 213–14; Personal Responsibility
Kony et al. case 241 and Work Opportunity Reconciliation
Korea, air bombing 116–17 Act 1996 (PRWORA) 100; Prisoners’
Korean war 117 and Victims’ Claims Act 2005
Kosovo 230 (NZ) 62n.21; Prohibition of Mixed
Kramer, R. & Kauzlarich, D. 115 Marriages Act No 55 1949 (SA) 215;
Kramer, R. C. 40 Promotion of National Unity and
Krog, A. 218 Reconciliation Act (Act No 34 of 1995)
Kurlansky, M. 113–14 (SA) 216; Reservation of Separate
Amenities Act 49 1953 (SA) 215; SB
labeling processes 9, 58, 61, 246 1070 98–9, 100, 101, 102, 103; Separate
labor supply: and apartheid 212; and illegal Representation of Voters Act No 46
immigrants 89–90 1951 (SA) 215; Support Our Law
Lamb, S. 80 Enforcement and Safe Neighborhoods
Lancet 119 Act 2010 98–9; Suppression of
Land Act 1913 (SA) 214 Communism Act No 44 1950 (SA) 215
Latinos, fear of 99 legitimization, of violence 52
law making, political nature of 67 Leuven Institute of Criminology 150
Law on Alternative Sentencing 2003 Lieber Code 122
(Colombia) 207 life expectancy 102
law(s) see also international law; legislation: lifestyle exposure theory 11
apartheid 213–16; international criminal limitations, on claims 56
law 6; International Humanitarian Law Lindbergh, Charles 110
(IHL) 110–11, 115, 120, 121–3, 124; Lindqvist, Sven 112
refugee law 134; as tool of state 7; of Long War Journal (LWJ) 120, 121
war 110–11, 124 Lorde, Audre 126
League of Nations 122 loss of property, as victimization 160
legal action, funding of 56 love, and healing 197
Legal Framework for Peace Lubanga case 241
(Colombia) 192 Lund, G. 222
legalist approach, to crime 6–7
legal offense, bombing of civilians 110 Macedonia 230
Legal Services Agency (NZ) 56 Mahmudiyah Massacre 35
legislation see also international law; Mali 229
Index 257
Mamo, the 198 MV Moscow 74

Mandela, Nelson 216 My Lai Massacre 35
Manning, Bradley 226
Maren, M. 229, 230, 233 Namibia 217
maritime piracy see piracy nationalism, threat of 116
maritime terrorism see terrorism National Movement of Street Boys and
marketization, of aid delivery 229, 233 Girls 16
Marx, Karl 43 national register (SA) 214
massacres: Candelária Massacre 25–6; National Reparation and Reconciliation
Haditha Massacre 35; Mahmudiyah Commission (Colombia) 192
Massacre 35; Mukaradeeb Massacre 34, nation states, as criminal actors 132 see also
37–40, 41; My Lai Massacre 35; state(s)
Orientalist interpretations of 38 Natives Act 67 1952 (SA) 215 see also Pass
Sharpeville massacre 215; term 42 Laws
mass victimizations 4, 8 Natives Laws Amendment Act 54 1952
material loss, as victimization 160, 161 (SA) 215 see also Pass Laws
Mattis, James 38 natural disasters, and human rights 134
Max Planck Institute 151 Nazi Germany, genocide 4
Mbembe, A. 90 necropolitics of health 90
McCall, L. 177 needs, of unprotected children 23
McCarthy, Rory 41–2 negotiation, unintended consequences
McShane, M. & Williams, F. 54 of 227
media, U.S./atrocities 35, 38–41 neo-colonialism 119
men, and victimization 57 neocolonialist projects, U.S./legacies of 34
Mendelsohn, Benjamin 3 neoconservatives 119
Merton, Robert K. 225, 226 New American Foundation (NAF) 120–1
Mexican Ministry of Foreign Relations New York Times 38–9, 40, 41–2
94 New Zealand, abuse/state institutions 47–9
Michalowski, Ray 126 Nigeria, piracy 71
migrant aid groups 95 Nixon, Richard 117
migrant deaths, U.S.-Mexico No More Deaths 95
borderlands 93–4 non-citizens, claims of/European
migrants, exploitation of 96, 97 court 179–81
militarization, U.S.-Mexico noncombatant immunity 110
borderlands 94, 95, 97 non-governmental aid agencies 229
military necessity 124 Non-Governmental Organizations: and
military power (U.S.) 118 aid 229, 233; views about Colombian
Mines and Works Act 1911 214 guerrillas 208
mining, and apartheid 212 non-Hispanic whites 92
minority children, institutionalization of normalization: of state terrorism 116; of
(NZ) 48 violence 52
minority groups: and access to North Atlantic Treaty Organization
accountability 174; and criminal justice (NATO) 66, 119
systems 68; demonization of 68; North Korea 227, 230
recognition of 188n.1 Nugent, W. 112
mobility, impeded/and health 101 Nuremberg, International Military
Monroe Doctrine 112 Tribunal 119, 122, 123
moral crime, bombing of civilians 110, N. v. Sweden 182
114, 118
moral suasion, unintended consequences Obama, Barack: drone strikes 38, 120;
of 227 immigration reform 104
mortality, youth (Brazil) 26 objective violence 36, 42, 43; capital
motivations, for Somalia piracy 72–4 accumulation as 42
Mozambique 217 offenders: reintigrating 208; status of 54–5;
Mukaradeeb Massacre 34, 37–40, 41 and victims 54; as victims 62n.21
258 Index
Office for the Coordination of philosophy of life, optimistic 201

Humanitarian Affairs (OCA) 138 Pickering, S. 133, 134, 143
Office of Public Council for Victims piracy: anti-piracy policies/secondary
(OPCV) 240, 241, 242, 246 harm 80; defined 81n.1; maritime 66;
Oil for Food program 228 motivations for 69; Philippines/South
omission, crimes of 8, 9, 133, 135–42, 143 China Sea/Nigeria 71; Somalia
open door imperialism 112, 118 problem 69–72 see also Somali piracy
Operational Guidelines on Protecting pirates of Somalia, as victims/
Persons in Natural Disasters 134, 135, perpetrators 67, 74, 80
137, 138, 141, 142 police, violence (Brazil) 28
Operation Desert Fox 119 politics: of atrocity 34–7; and
Operation Gatekeeper 93–4, 95, 96 international social control/justice 68;
Operation Iraqi Freedom 33 and law making 67; of white
Operation New Dawn 33 nativism 99
Operation Rolling Thunder 117 population-based research 149, 150–9
oppression, racial 212 postmodern war 35
organized crime, U.S.-Mexico Post-Traumatic Stress Disorder
borderlands 95, 96 (PTSD) 220
Orientalist, interpretations of massacre 38 poverty: Brazil 15, 23–5; and Somali
others: and immigration policy 102; war piracy 72–3; street children 16, 19, 20;
dead as foreign others 34 victims of displacement 194
power: and access to accountability 174,
pain, dealing with victims 197–201, 184; crimes of 125; and human
207–10 see also healing rights violations 183; of spirituality/
Pakistan: conflict/mortality rates 10; drone values 197–9; structural relations of
strikes 120, 121, 231 55–8, 61; of victims 173; of vulnerable
Pan Africanist Congress (PAC) 215–16, groups 56
217 preparation, pattern of/human rights
Panama 118 violations 4
Pan-American Health Organization prison: children (SA) 217; population
(PAHO) 138 (SA) 212
Pape, R. 232 Prisoners’ and Victims’ Claims Act 2005
paranoid-schizoid perspective, response to (NZ) 62n.21
trauma 220 prisoners, erosion of rights 62n.21
Paris Peace Conference 122 professional ideals, and attrition through
Parmentier, S. 150 enforcement 102
Parmentier, S. & Weitekamp, E. 238 Prohibition of Mixed Marriages Act No 55
Pass Laws 212, 213–14, 215 1949 (SA) 215
Patterson, I. 113 Promotion of National Unity and
peacekeeping missions, killing of Reconciliation Act (Act No 34 of 1995)
civilians 231 (SA) 216
Peace Preservation Acts (SA) 213–14 prosecutions, and victims
penal victimology 4 peace/reconciliation 244
people smuggling 96 psychological assistance, victims 199
people trafficking 91, 141–2 psychological wage, for whiteness 92
perpetrators of harm 233 public health, and immigrants 99–103
persecution, collective/indigenous public participation, denial of access/
groups 195–6 undocumented immigrants 99
Persian Gulf 118 public service workers, as immigration
Personal Responsibility and Work officers 102
Opportunity Reconciliation Act 1996 punishments, children in institutions 49
(PRWORA) 100
personhood, limited 92 quantitative research 177
Pew Research Center 92 Quinney, R. 51
Philippines, piracy 71 quota sampling method 152
Index 259
Race Classification Board (SA) 214 Rochester, J. 27

racial discrimination, and European Rome Statute Rules of Procedure and
Court 186–7 Evidence 239–40, 241, 242
racialized citizenship 92 Roosevelt, Franklin 114
racialized nature, border/immigration Ross, J. I. & Rothe, D. L. 226
policies 91 routine activities model 11
racial oppression 212 Rules of Aerial Warfare 122
racial profiling 68 rules of engagement 233
racism, internalised 221 Rules of Land Warfare 115
racist cultural logics 38 Rwanda, genocide 9, 10, 229
Rafter, N. & Walklate, S. 11
RAND terrorism database 71 Samaritans 95
rapes: and armed interventions 231; Sami villages 186
Haiti 139, 140; women migrants 97 sanctions: and increased repression 228;
Reagan, Ronald 88 smart/targeted 228, 233; unintended
recognition, of victimhood 47, 50 consequences of 227–9, 233
refugee law 134 São Paulo 28
refugees 132, 134 SB 1070 98–9, 100, 101, 102, 103
religion, and healing 221 Scarry, Elaine 37
Remotely Piloted Air Systems (RPAS) 119 Schaffer, R. 114
reparations see also compensation: Scheper-Hughes, N. 24
financial 208; and ICC 240, 243; Schwarzkopf, Norman 35
obtaining economic 204; South Schwendinger, H. & Schwendinger, J. 6
Africa 220, 222; symbolic 239, 244, secondary victimization, Somali pirates 80
246 Security Council 125, 228
repression: and humanitarian security, of internally displaced
interventions 233; and sanctions 228 persons 139–42
research: population-based research 149, Selden, M. 114, 115, 116
150–9; quantitative 177 self-deport 87, 101, 102
Reservation of Separate Amenities Act 49 self, erosion of sense of 49
1953 (SA) 215 Separate Representation of Voters Act No
restavec 141 46 1951 (SA) 215
Restavec Children Foundation 141 Serbia, bombing of civilians 119
restorative accountability 207 sexual abuse: street children 28; and
restorative approach, victims pain 207–10 torture 161, 163
restorative justice (RJ) 192; sexual exploitation, by peacekeeping
Colombia 204–7; meeting forces/NGO workers 230
offenders 202, 209; and transitional sexual victimization, and men 57
justice 205–6 sexual violence 62n.1
restorative transitional justice (RTJ) 204–7 shame, victims of displacement 194, 195
Restoring Justice in Bosnia and Herzegovina’: shanty towns, Brazil 18
Results of a population-based survey 156 Sharpeville massacre 215
revenge 201 Shimoda case 115
re-victimization: following “shock and awe” bombing 119
interventions 227–32; Haiti 135–42; of Shock of Order operations, Brazil 24, 26
internally displaced persons 132–5, 142; silence, and attrition through
and labelling processes 246 enforcement 103
Rhodes, Cecil John 213, 215 silencing: administrative techniques of 55;
Riebeeck, Jan van 213 of state-led victimization 59
rights: to fair trial 179, 185; human/civil 24 slavery 141
see also human rights; of internally displaced Slomanson, William 122
persons (IDPs) 137; of prisoners 62n.21; smart sanctions 228, 233
street children/lack of 23 Smith, Adam 225
Rio de Janeiro 24, 25 smuggling 88, 96, 103, 228 see also
Rivonia Trial 217, 223n.1 trafficking
260 Index
social categories 176–7 rights definition 134; labeling of victims

social cleansing, street children 26 of 9; meaning of 132–3; method
social connectedness, and health 102 for victimology of 9–11; numbers of
social construction: of victimization 59; of victims 9–10; of omission 9, 133,
victims 51–4 135–42; standards to classify 6–7; state
social control, international 68 offenders/corporate offenders 125; U.S.
social control policies, adverse impacts 116, 119; victimization 111–12; victims
of 68 of 5, 61, 173
social engagement, denial of access/ state criminality 6
undocumented immigrants 99 state institutions, abuse in (NZ) 47–9
social groups: inequalities 177; vulnerable state killing (U.S.) 35
to human rights violations 173 state-led victimization, of children 54
social harm, and victimization 59 state neglect, of street children 23–9
social harm definition, of crime 6, 7 State of Emergency (SA) 217
social injury, and immigration policy 93–9 state omission: Brazil 23–5; Haiti 141
social inquiry, ghosts of the dead 36 state(s): accountability of 174, 182, 184;
social interaction, and safe control of activities of 173; as criminal
communities 101 actors 132; criminalization of/and
social isolation, and anti-immigration sanctions 228
policies 99 state terrorism 114, 116
social wellbeing, Brazil 15 state theology (SA) 221
Somalia: aid to 230; armed intervention state violence: South Africa 216–20; U.S.
in 230 36, 38, 40, 44; victims of/claims 61
Somali piracy: and fishing 73, 78, 79, 80; stigmatization, street children 16, 20–2,
militarized response to 71; motivations 23, 25
for 67, 69, 72–4; and poverty 72–3; Stockholm syndrome 194
problem of 66, 69–72; re-victimization Stovel, L. 205, 206
of pirates 74–80; as terrorism 71–2; Stover, E. 238
as threat to international peace and strategic bombing 114
security 66–7 street children: in adult detention
Somali pirates, as victims/perpetrators 67, centers 21; Brazil 17–20; causes of
74, 80 street involvement 19–20; clean-up
South Africa: apartheid 212–23; moving operations 24–5; criminalization 21,
to reconciliation 220–2; sanctions 228; 22; drug use 22; and education 28;
state violence 216–20; Truth and exclusion 23; and expectations/
Reconciliation Commission 205–6 constrained choices 20; and human
South African Coalition for Transitional rights 23; hunger 20; making a
Justice 222 living 21–2; national survey 16, 17;
South African Commission for Transitional origins of 18; poverty 16, 19, 20; state
Justice 222 neglect of 23–9; state victimization 16;
South African Defense Force stigmatization 16, 20–2, 23, 25;
(SANDF) 217, 223n.2 substance abuse 22; term 17;
South China Sea, piracy 71 vagrancy 22; violence 19; violence
sovereignty: and border control 88, 89; against 23–9; youth justice system 22,
dramatizing 88–91; term 88 28; zero tolerance 24
Spanish Civil War 113 street clean-up operations, street
special victims 8 children 24–5
spiral of denial 36, 38 street crime, theories of 11
spirituality, power of 197–9 street situation, in Brazil 20–2
standards, to classify state crime 6–7 structural inequalities, and health 100
state crime(s) 4–5; accountability for 125; structural relations/capabilities, centrality
bombing of civilians 110, 121; against of 55–8
children 54, 55; controlling/unintended structural relations, of power 55–8, 61
consequences 226; death squads (Brazil) structural victimization, apartheid
25–7; defining victims of 7, 8; human as 212–23
Index 261
structural violence, of globalization 91 Uganda 242

subjective violence 42 Umkhonto we Sizwe (MK) 216
substance abuse, street children 22 UN Charter 120, 125
Sudan 227, 242 undocumented immigrants 87, 90, 98, 99,
Sudan People’s Liberation Army 100–1 see also illegal immigrants
(SPLA) 227 unemployment, and street children 19
suffering: of family members 194; unintended consequences 225, 226;
interpreting 200–1; of armed intervention 230–2; of
self-perceived/war 163–5 humanitarian intervention 229–30; of
suicide, children in institutions 50 sanctions 227–9
supply side, border policies 91 “Unintended consequences of purposeful
Support Our Law Enforcement and Safe social action” 225
Neighborhoods Act 2010 98–9 unipolar moment 117–18
Suppression of Communism Act No 44 United Nations Children’s Fund
1950 (SA) 215 (UNICEF) 141
survival, dynamic process of 61 United Nations Convention on the Law of
Sutherland, Edwin 4 the Sea 81n.1
Sweden, and European Court 178–81, United Nations Convention on the Rights
183–4 of the Child (UNCRC 1989) 23, 27
symbolic reparations 239, 244, 246 United Nations (UN) 66; Development
symbolic violence 40, 43 Programme 151; flawed structure
Syria 230, 234 of 124–5; General Assembly 216;
systematic violence 43 Office for the Coordination of
Humanitarian Affairs (OCA) 138;
Tanaka, Y. 113, 114 Oil for Food program 228; Security
TARR model 150–1 Council 125, 228
terrorism: cyber 232; Somali piracy as United States: abuses by 233;
71–2; state 114, 116 bombing of civilians 111–21, 126;
three-fold model 11 capital accumulation strategies 89;
Tirman, John 36 criminalization of migrants 97; and
Tokyo, International Military cyber warfare 232; drone strikes 38,
Tribunal 123, 125 119–21; empire building 34, 111, 112,
torture: Abu Ghraib prison 35, 40, 233; 116; foreign policy 112; immigration/
Brazil 28; and sexual abuse 161, 163; border enforcement policies 87–8, 103;
South Africa 218; U.S. 43, 119, 227 imperialism 34, 36, 43, 111–12, 116,
see also Abu Ghraib prison 119; military violence 35, 42; moral
total war 116 authority of 232; neoliberal military
toxic dumping, and Somali piracy 73 power 34; as reluctant superpower 112;
trade sanctions, unintended consequences sanctions/Cuba 227; state crime 116,
of 227–9 119; state violence 36, 38, 40,
trafficking 91, 141–2 44; torture 43, 119, 227; wartime
transitional justice (TJ): Colombia 191, atrocities 35–6
192; defined 167n.1; meeting victims Universal Declaration of Human Rights
needs 208; reintigrating offenders 208; (UDHR) 104, 134, 174, 222
and restorative justice 205–6; TARR unmanned aerial vehicles (UAVs) 119
model 151; truth of the facts 202–4 U.S.-Mexico borderlands: migrant
traumatisation, psychiatric model of 220 deaths 93–4; militarization 94, 95, 97;
trauma, victims response to 220 organized crime 95; people smuggling/
Trust Fund for Victims (TFV) 240, 243 drug cartels 91
Truth and Reconciliation Commissions USS Nicholas 74–80
(TRC) 192, 205–6; South Africa 216,
217, 221 vagrancy, street children 22
truth, search for 202–4, 238 values: power of 197–9; universal 225
Turse, Nick 117 Verwoerd, Hendrik 215
Tutu, Desmond 221 veto power, U.N. 125
262 Index
victimality 11 naming 40–3; normalization of 52;

victimhood, recognition of 47, 50 objective 36, 42, 43; and piracy 66,
victimization: amplification of 221; 71; sexual 62n.1; state (Brazil) 25–7;
children/state-led 54; constructions state (SA) 216–20; state/victims
of 59; designated to the past 59, 61; of 61; against street children 23–9;
during/after war in Bosnia 160–6; subjective 42; symbolic 40, 43;
forms of 160; and ICC 239; indigenous systematic 43; U.S. military 35, 42;
groups 196; indirect 166; as a U.S./state 36, 38,
journey 49–51; perceptions of 207–8; 40, 44
processes of 8; realtionship between Volunteer Coastguard of Somalia 73
experiences of 161–3; research on vulnerability, and ideal victims 53
150–9; secondary/Somali pirates 80; vulnerable groups: lack of power 56; and
state crime 111–12; state-led/silencing sanctions 228
of 59; state/street children 16;
structurally led 56; theories wages of whiteness 93
of 11; types of 161–2; victims of Walklate, S. 60
displacement 136, 194–5; victims role war crimes 42 see also International
in 8; war-related 160 Criminal Court (ICC); bombing of
victimology: method for/state crime 9–11; civilians 111, 115, 116, 123; and Great
realm of 3–4 Powers 125–6; tribunals 123, 238–9,
victim policy 46 240; U.S. 119; World War II 123
victim registration (SA) 222 war dead, and foreign others 34
victims: becoming offenders 9, 62n.21, war on drugs 67–8, 80, 87, 91, 103
209; civilians bombed 111, 115, War on Terror 34, 43, 44, 119
116, 123; costs/benefits of coming war(s): attempts to outlaw 122; Boer
forward 59–61; criminalization of 53, War 213; Bosnia 149, 160–6; Cold
54; defined 7, 8, 239–40; designation War 112, 116; cultural politics
of 51–9; dignity of 209, 239; effect of 37; Gulf War 1991 118, 231; Iraq
of prosecutions 244; general/special/ War 2003 118, 230–1, 232; Korean
broader 8; giving voice to 46; healing war 117; postmodern 35; self-
pain of 197–201, 207–10; ideal 51, perceived suffering 163–5; Spanish Civil
52–3; and international criminal justice War 113; total war 116; Vietnam 35,
system 238–47; of kidnapping 193–4, 116–17; war on drugs 67–8, 80, 87, 91,
199–200, 204, 208; labeling/state 103; War on Terror 34, 43, 44, 119;
crime 9; obstacles facing/ICC 241–4; World War I 122; World War II 111,
and offenders 54; power of 173; 114–16, 123, 231
prisoners as 62n.21; psychological Washington Post 38–9, 40, 41–2, 120
assistance for 199; response to Wasinski, Christophe 36
trauma 220; and restorative justice weapons embagos, and repression 228
204–7; role in victimization 8; weapons flow U.S. to Mexico 91
satisfaction with criminal justice Weber, L. & Pickering, S. 89
systems 246; social construction of Welch, M. 125
51–4; of state crime 5, 7, 8, 9, 61, 173; well-being, and anti-immigration
status/and gender relations 56; victim policies 100
identity 59 Wernham, M. 25, 29
Victim’s Law (Colombia) 192, 208 whistleblowers 9
Victims Participation and Reparations white-collar crime 4
Section (VPRS) 240, 242, 243 whiteness, psychological wage for 92
Vietnam war 35, 116–17 Who Are the Criminals? The Politics of Crime
violence: Brazil 15; children in Policy from the Age of Roosevelt to the Age
institutions 49; domestic/street of Reagan 5
children 19; gendered/internally Williams, F. 174
displaced persons 139–42; of Williams, William Appleman 112
globalization 91; in institutions 49, Wilson, Woodrow 112
52; legitimation of 52, 123–4; Wolfgang, Marvin 3
Index 263
women: and claims 56; and European young people: and apartheid 217;
Court 181–2; internally displaced homicides 16
persons/gendered violence 139–42; rape youth detention centers, violence
of 97, 139, 140, 231 in/Brazil 27–9
Wood, R. M. 228, 230 youth justice system: New Zealand 48;
Woodward, S. L. 230 street children 22, 28
World Food Program (WFP) 138 Yugoslavia 118, 230
World Health Organization
(WHO) 137–8 zemiology 6
World War I 113, 122 Zero Dark Thirty 43
World War II 111, 114–16, 123, 231 zero tolerance: immigration law 99; street
children 24
Year of the Drone, The 120 Zinn, H. 116
Young, Marilyn 117 Žižek, Slavoj 36, 42, 43
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Towards A Victimology of State Crime (PDFDrive)

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Towards A Victimology of State Crime (PDFDrive)

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TOWARDS A VICTIMOLOGY OF

Dawn L. Rothe is an Associate Professor at Old Dominion University, US and

Edited by Dawn L. Rothe and

LONDON AND NEW YORK

ISBN: 978–0–415–63900–2 (hbk)

1 A victimology of state crime 3

2 The victimization of street children in Brazil 15

3 Accumulating atrocities: capital, state killing and the

4 The victimization of children in state-run homes in

5 Somali pirates: victims or perpetrators or both? 66

6 Victimizing the undocumented: immigration policy and

7 “Death flies down”: the bombing of civilians and the

8 State crime and the re-victimization of displaced populations:

9 Victimisation during and after war: empirical findings

10 European Court of Human Rights: accountability to whom? 173

11 The victims of the colombian conflict and restorative justice 191

12 Institutional and structural victimisation: apartheid South Africa 212

13 Controlling state crime and the possibility of creating

14 Can an international criminal justice system address

Isabella Bueno is a Colombian researcher at the Leuven Institute of Criminology.

Victoria Ellen Collins is an Assistant Professor in the School of Justice Studies at

Peter Grabosky is a Professor in the Regulatory Institutions Network, Research

Lisa Hardy is a medical anthropologist and Assistant Professor of Anthropology

David Kauzlarich is Professor of Sociology at Southern Illinois University

Ronald C. Kramer is Professor of Sociology and Director of the Criminal Jus-

Travis Linnemann is Assistant Professor of Sociology and Criminal Justice at Old

Raymond Michalowski is a sociologist and Arizona Regents Professor of Crimi-

Robert Peacock is a Vice-President of the World Society of Victimology and Aca-

Fernanda Fonseca Rosenblatt is a Lecturer in Criminal Law at the Catholic Uni-

Dawn L. Rothe is an Associate Professor in the Department of Sociology and

Isabel Schoultz is a PhD student in the Department of Criminology at Stockholm

Amanda Marie Smith is a doctoral student in the Department of Sociology at

Currently, she is working on investigating social institutional differences and crime

Elizabeth Stanley is Senior Lecturer in Criminology at Victoria University of Wel-

Tyler Wall is an Assistant Professor in the School of Justice Studies at Eastern

Elmar G.M. Weitekamp studied social work at the Hochschule Niederrhein in

This collection of scholarly essays on state crime victimization represents a con-

State crimes, harms,

The realm of victimology and state crime

Returning to the definitional quagmire

Who are victims and who decides?

A method for a victimology of state crime?

Friedrichs, D. (1998). State Crime, Vols 1 and 2. Aldershot: Ashgate/Dartmouth.

Ross, J. (1995). Controlling State Crime: An Introduction. New York: Garland.

The street children phenomenon in Brazil

Who are the street children?

Where do they come from?

What takes them to the street?

Poverty and violence

Fun and freedom

High expectations and constrained choices

The “street situation” and the stigmatization of street

Making a living on the streets

The problem of substance abuse

State neglect and violence against street children in Brazil

From state omission to the penalization of poverty in Brazil

Of course, due to the lack of “a comprehensive and holistic range of child-friendly

State violence through police-led death squad operations

is mentioned in virtually every piece of writing on the street children phenomenon

The Candelária killings [. . .] reflect the larger pattern of perpetrators and

Further violence in youth detention centers

5 The original report is still available online, at http://www.ovp-sp.org/relatorio_sp_

Lucchini, R. (2003) “A criança em situação de rua: uma realidade complexa,” in I. Rizzini