Human Rights and States

The final dimension of the definition of crime we derived earlier has to do with states and human rights. Specifically we note that crimes are behaviors committed by and against states and their organizational entities that harm states or their entities and/or impact the rights of citizens of states as recognized by the UN Declaration on Human Rights.

This definition of crime specifically addresses an area of crime that only a small segment of the criminological community now recognizes—the existence of state crimes and state-corporate crimes. The concept of state crime was introduced through the work of William Chambliss (1988), Kramer (1989), and Michalowski (1985), and later expanded by Kramer, Michalowski, and Kauzlarich (2002; see also Michalowski and Kramer 1987) to include state-corporate crime.

These two conceptualizations of state and state-corporate crime are important mechanisms for illustrating the weaknesses in the legal definition of crime as a violation of the criminal law. State crimes, especially those that involve the victimization of one state by another, are in some cases defined by the law as a crime. The laws that apply in these cases are often international laws like the International Criminal Code. Here we have forms of state crime that are recognized by the criminal law as crimes. The importance of this observation is that when orthodox criminologists count crimes, they do not ordinarily refer to international law and the ways in which international laws define state crimes and even prosecute and count those crimes. As a result, orthodox criminologists often do not count state crimes when they produce statistical estimates of crime. To be sure, depending on how one defines and counts state crimes, and what data are selected for this purpose, the number of state crimes may be quite small in comparison to the kinds of street crime that criminologists routinely examine. Central to this observation is how the concept of state crime is constructed and the kinds of behaviors it includes. For example, the International Criminal Court does not handle a large number of cases annually. Nevertheless, the number of victims in such cases may be large and may include the entire nation or significant portions of a nation’s population affected by behaviors such as illegal war, invasion activities and related war crimes, and crimes related to ethnic cleansing and genocide (see Hoofnagle and Rothe 2010; Kramer, Michalowski, and Rothe 2005; Mullins 2011, 2009a, 2009b; Mullins and Rothe 2008a, 2008b; Rothe 2009; Rothe, Kramer, and Mullins 2009). Such crimes are important because of the massive harm they produce, and while these crimes may be few in number compared to traditional street crimes, it is the importance of these behaviors and the ways in which states use their power to violate people’s rights that is more important than counting such offenses. Likewise, it is unlikely that these kinds of crimes occur for the same reasons as street crimes, and they require reference to explanations other than individual-level factors such as social bonds, family backgrounds, or peer influences (Lynch, Long, and Stretesky 2013). In short, the exclusion of state crimes that violate international law from the definition and counting of crime means that both the validity of the orthodox concept of crime and its measure of crime are questionable.

Because criminologists don’t spend considerable time exploring or counting state crimes, they have done little to try to explain the factors that produce those crimes, leaving that issue up to a small group of criminologists (see previous citations) and to researchers in other disciplines (e.g., Fein 1993; Hintjens 1999; Mann 2005; Vol- kan 1985). Explanations for the exclusion of state crimes from tests of criminological explanations of crime fall in two major camps. First, the orthodox criminologist might suggest that state crimes differ substantially from the kinds of individual-level crimes the criminal law defines as crime. Because of the differences between these types of crimes, state crimes cannot be counted alongside ordinary violations of the criminal law, since these two types of crime refer to different units of analysis. To be fair, that criticism certainly appears valid on its face. But that face validity is questionable if we dissect this issue to expose its weakness.

The assertion that state crimes and street crimes refer to different “units of analysis”—with one being an entity-level variable and the other an individual-level variable—involves distorted logic that is inconsistent with the general assumptions of the microlevel orientation preferred by orthodox criminology. To exclude state crimes from analysis in this way, the orthodox criminologist is suddenly willing to accept the idea that some forms of crime require a structural interpretation. After all, states are organizational structures, and if they engage in crime and/or the factors that influence and explain that form of crime appear, then even to the microlevel researchers, the causes of such offenses appear to be meso- or macrolevel in their origins. Logically, that kind of argument seems to be inconsistent with the microlevel assumptions orthodox criminology normally makes. But here, the microlevel preference of individual- level theories suddenly appears relevant but nevertheless stands as an important rationale for excluding state crimes from analysis.

As with corporate crime, microlevel, orthodox criminology appears quite willing to dismiss the study of serious crimes as forms of lawbreaking because the laws being broken cannot be narrowly construed as criminal-l aw statues that relate to street crimes. The suggestion that orthodox criminology appears willing to allow state crimes to be excluded because the actors are entities is inconsistent with the assumptions of microlevel preferences that dominate orthodox criminology. Why is it, for example, that the orthodox criminologist does not act as if state offenses are committed by people who hold offices relevant to making decisions about the commission of state crimes? State crimes do not occur on their own; armies do not randomly invade other nations—they are directed to do so by those in positions of power who can render those decisions. There may be a lack of data on persons in such positions of power (Lynch, Long, and Stretesky 2013), but one could say that many of the questions criminologists address lack data until criminologists devise a mechanism for collecting that data. Criminals do not voluntarily offer up information about themselves. Yet criminologists manage to collect data from many kinds of offenders.

In making these observations, it is not our intention to imply that state crimes do not have structural relevance. It is quite possible to examine how social, economic, and political factors and historical forces and relationships influence the commission of state crimes. Moreover, there is a significant literature on these kinds of issues (Kramer, Michalowski, and Kauzlarich 2002), one that expands well beyond the confines of criminology.

The International Criminal Court (ICC) exists to deal with state crimes related to genocide, crimes against humanity, war crimes, and acts of aggression. The treaty that created the ICC has been signed by 121 nations. In addition to bringing charges against state criminals for the offenses named here, the ICC has cases referred to it by the United Nations Security Council. While the ICC has not prosecuted a large number of offenders, it indicts individuals for violations over which it has jurisdiction. In addition to the ICC, the International Court of Justice (ICJ) also addresses violations of law and disputes between states. The ICJ is a judicial branch of the United Nations. One of the ICJ’s most important cases was its decision that the US invasion of Nicaragua in the early 1980s was a violation of international law (D’Amato 1985). The application of these laws raises important issues about crime and the definition of crime that criminologists employ.