Abstract
This article is concerned with deviations from legal functioning of the modern state, which is supposedly grounded on legal structure, but may conduct extra-legal activities. In this article, special focus is directed to certain extra-legal activities of the following modern states: the Susurluk Affair in Turkey, the Iran-Contra Affairs of the USA, GAL in Spain, the Gibraltar Killings committed by UK soldiers, and enforced disappearances in Argentina. These cases are interpreted from the points of view of Max Weber’s and Jürgen Habermas’s theories of the rule of law, Hans Kelsen’s legal positivism, Carl Schmitt’s theories of the political and sovereignty, and Austin Turk’s theory of political criminality. Our purpose, then, is to evaluate these theories vis-à-vis the cases of extra-legal activities of the state.
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Notes
One has also to take into consideration that the legal framework is changed in "emergency" conditions. For instance, Finn analyzes constitutional reconstruction in Northern Ireland and West Germany in the periods of the fight against the IRA and the Red Army Faction, respectively ([14], pp. 86-97), and stated that amendments in the constitutions and legal framework empowered security forces, and disrupted constitutional integrity.
Extra-legal is defined as “1. Beyond legal purview; outside the scope of law; 2. Illegal” [15].
See Austin Turk’s review of radical criminology: [36].
Cohen and Corrado define state torture as a “political crime” [44].
Barak defines crimes which are committed for political aims as “political”, and those which are for personal gains as “nonpolitical” state crimes. He asserts that “nonpolitical state crimes are usually identified with and committed by individuals employed by the government who take advantage of their positions to engage in crime for personal and/or monetary gain” ([6], p. 5), [38]. Barak asserts that “political state crimes” are “motivated by a desire to maintain the status quo or curtail change”, and they are “committed by agents working from the top down’” [6, 38].
See David Dyzenhaus [45], for the distinction between democratic-positivist interpretations of the concept of the rule of law and liberal anti-positivist interpretations.
Weber also criticizes disclosure of foreign policy issues by the monarch through private statements.
Hans Kelsen says that conceptualizing the state as a social organization is not significant, because the state cannot be covered by the concept of the ‘social’ ([20], p. 182). The state cannot be conceptualized as a territorial unity either, just because this supposed territorial unity of the state has no significance if it is not derived from a legal unity ([20], p. 208).
Kelsen criticizes this approach, for it conceptualizes the state not as merely a group of individuals, but as “more than the sum-total of its subjects” ([21], p. 24). Kelsen also challenges this dualism and claims that “this dualism is theoretically indefensible” ([20], p. 182). The reason of denying the dualism of state and law is that “the State as a legal community is not something apart from its legal order, any more than the corporation is distinct from its constitutive order” [20].
Political power, on the other hand, is “the efficacy of the coercive order recognized as law” ([20], pp. 190-191). The state as a political organization of a society is a legal order, and the definition of "political" is founded on the effectiveness of this order.
Deveci asserts that Schmitt’s other concepts are employed for supporting the concept of the political [10].
Schmitt emphasizes that the possibility of real confrontation is necessary for politics. However, the political cannot be conceptualized as war; it is the decision on who the enemy is so that it may pave the way for a real war. For Schmitt, “from this most extreme possibility human life derives its specifically political tension” ([33], p. 35).
Schmitt points out that defining a friend or an enemy springs from a concrete situation: say a political group is somehow the same, has a relative homogeneity, and the enemy is a threat against the existence of this group. He states the case as “to preserve one’s own form of existence”.
Agamben asserts, “sovereignty presents itself in Schmitt in the form of a decision on the exception” ([3], p. 25). Accordingly, the decision is taken not by someone designated for it, but through mediation of the nomos, that bestow the actual meaning of the decision ([3], pp. 25–26). Then, according to Agamben “the decision” for Schmitt conforms to the “nomos” ([3], p. 36). That is why, in Schmitt’s theory, the constitution of law is effective beyond the constituted law. Accordingly, legal norm always presupposes an exception; it refers to life through defining the exception, for setting the rule. Therefore, “life, which is thus obligated, can in the last instance be implicated in the sphere of law only through the presupposition of its inclusive exclusion, only in an exceptio” ([3], p. 27). Sovereignty rests on this “threshold in which life is both inside and outside the juridical order” [3]. This “threshold of indistinction between outside and inside, exclusion and inclusion, nomos and physis, in which life is originarily excepted in law” is reviewed and renewed by the sovereign decision [3]. Thus, Agamben asserts that for Schmitt sovereign decision regarding biopolitical body is made in accordance with the nomos, and cannot be limited by a given legal framework.
These attributes of the authority are very important for Schmitt [32].
He claims that Hobbes pointed out differences between the responsible authority and the authority “that demands obedience without being able to protect, that wants to command without assuming responsibility for the possibility of political peril, and exercise power by way of indirect powers on which it devolves responsibility” ([32], p. 83).
A state is not free in deciding the exception. Organizations of international politics, such as the UN, may interfere in domestic issues with instruments such as declaring an embargo, or military intervention by a security force. Schmitt says that “peaceful” methods such as “economic sanctions and severance of the food supply from the civilian population” are not less political than warlike methods ([33], pp. 78–79). These policies are generally put into effect on the pretext of maintaining human rights, democracy, and freedom. Hence, concepts of freedom, democracy, and humanity are also transformed into instruments of international politics. Therefore, the limitation on national sovereignty set by international politics serves as a means of justifying secrecy of the decisions made on exceptions in extra-legal activities of the modern state.
Turk is one of the authors of critical criminology. While he does not distinguish capitalist societies from other societies from the point of theory of criminality, Quinney develops a theory of criminology for capitalist societies [26].
Turk comments that one cannot assume that “police officers are always the unquestioning servants of the dominant classes” ([37], p. 116)
Certain incidents that are related to the extra-legal activities of the state were investigated by a Commission formed by the Turkish Grand National Assembly, and by the Prime Ministry Inspection Board. However, most of these activities were not brought to court, and therefore were not defined as violations of law in legal terms; however, they were narrated in the report of the Prime Ministry Inspection Board. This report is an important document which reflects certain aspects of the Susurluk Affair, though it is not a legal document which presents a factual account of it. The investigation report refers to many murders by unknown assailants. It narrates the methods used for cutting off support to the PKK [30, 41]. The Public Prosecutor of the Istanbul State Security Court launched a trial on March 5, 1997 against 14 persons, including a retired military officer and trainer of the Special Team of the Security General Directorate and the deputy Chief of the Special Operations Office of the General Directorate of Security, on charges of forming an armed gang. The court decided on February 12, 2001 that 12 of those persons were guilty of “concealing a wanted criminal”, and all of them were guilty of “forming an armed organization”. Additionally, it was decided that the trainer of the Special Team of the Security General Directorate and the deputy Chief of the Special Operations Office of the General Directorate of Security committed the crime of “leading the mentioned organization” [41]. The Court sentenced each of them to 6 years in prison and other defendants to 4 years [42].
Another aspect of the Iran-Contra Affairs is the drug trafficking tolerated by the CIA. This aspect was investigated by the US Senate’s Foreign Relations Subcommittee on Terrorism, Narcotics and International Operations. However, these investigations were halted by the Department of Justice. The US’s foreign policy for Central America as well as the Cold War policy of fighting against communism form the historical background of the “contra” side of the Iran-Contra Affairs. The US had been involved in the internal affairs of the countries in Central America for a long time [8].
For instance, the fact that the CIA had secretly mined Nicaraguan harbors was revealed in 1984 [43].
In early December 1983, a compromise was reached. Contra funding for FY 1984 was capped at US$24 million – an amount significantly lower than the Administration had wanted, with the possibility that the Administration could later approach the Congress for supplemental funds [43].
Another case that deserves analysis is the extra-legal activities of McCarthyism in Cold War US. Howse points out Leo Strauss’s criticism on Schmittian decisionism. According to that analysis, Strauss criticizes McCarthyism through criticism of the Schmittian conception of friend–enemy distinction and of conception of the internal enemy [17].
Michael McClintock says, “the doctrine’s unique contribution was the legitimation of state terrorism as a means to confront dissent, subversion, insurgency” ([23], p. 121). For instance, in the Guatemala case, Guatemala’s final truth commission report released in 1999 tells a lot about the US training given to Guatemalan counter-insurgency officers, and about direct and indirect CIA support to state terrorism. The US School of Americas was a “training center for Latin American military officers who have been implicated in many human rights abuses” ([23], p. 232). The US also trained police forces in Latin America for stronger control of population in these countries [18]. The US promoted “strong governments” in Latin America and helped in the creation of legal instruments for harsh treatment of social opposition, too. Alfonso Reyes Echandía [12]. After the end of the Cold War, there are other cases in which international law is suspended manifestly, such as suspension of law in Camp X-Ray at Guantanamo Bay. Many similar examples of violations have been cited in the press and introduced into the literature of political science after September 11, 2001. See, for example, ([7], p. 85) and ([11], p. 77).
Sluka demonstrates how the British security forces have used complicated methods for supporting and promoting Loyalist Protestant death squads against Nationalist Catholics in Northern Ireland [34]. Sluka points out that “the British government has established a sophisticated system of direct control, through its military and intelligence services (MI5 and MI6)” for effectively “maintaining a respectable distance between the government at the top and the people who are killing at the bottom” ([34], p. 141).
Sluka emphasizes the ample body of evidence of collusion between the British military forces and the death squads in Northern Ireland, and adds, “a large number of human rights organizations have consistently documented British state involvement in and management of loyalist death squads” ([34], p. 142). Furthermore, while Nationalist Catholics’ offenses have been prosecuted appropriately, Loyalist Unionists’ offenses are seldom prosecuted [34].
The decision was made in 1995, by a 10 to 9 majority.
Even if the distinction between transgression and execution of law is defined relatively clearly in legal texts and in terms of constitutional order of the concerned country, cases of transgression may not be disclosed and brought to court. For instance, extra-legal forces of the state in India is incorporated into the counter-insurgency policy of the Indian state against Sikhs in Punjab and Muslims in Kashmir, but this incorporation was not disclosed totally despite a relatively clear boundary between transgression and execution of law [22].
Pettigrew states that “illegal detention, disappearance, false encounter (a fictitious armed engagement as a cover up for police killing of a detainee) became daily events” in the Sikh rural areas of Punjab ([24], p. 205). Special police forces were formed as “extralegal groups operating on behalf of the state” ([24], p. 207). According to Pettigrew, these special police forces “are permitted to function outside their normal areas of jurisdiction” and can join both military and paramilitary units for special operations ([24], p. 209).
10,000 to 30,000 people disappeared from 1976 to 1982 in Argentina ([27], pp. 93, 97).
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Acknowledgements
I am grateful to Cem Deveci for his help in theoretical aspects of the article. I thank the Crime, Law and Social Change’s reviewer for his/her insightful remarks. I am grateful to Zafer Yörük, Filiz Kartal and Milyar Hükümen for their editorial help.
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Sabuktay, A. Locating extra-legal activities of the modern state in legal-political theory: Weber, Habermas, Kelsen, Schmitt and Turk. Crime Law Soc Change 51, 511–530 (2009). https://doi.org/10.1007/s10611-008-9182-9
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DOI: https://doi.org/10.1007/s10611-008-9182-9